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Dakota Gallivan '14

Dakota Gallivan '14

Jared Stepp '14
Jared Stepp '14

Seton Hall Law Center for Policy and Research Senior Fellows Publish Op-Ed in The Record on the Militarization of Local Law Enforcement

September 24, 2014

Dakota Gallivan ’14 and Jared Stepp ’14, both Senior Research Fellows in the Seton Hall Law Center Policy and Research, and both veterans of the war in Iraq, published an op-ed in The Record speaking out against government-sponsored programs to equip local law enforcement with combat grade equipment and weaponry. To summarize their position, Gallivan and Stepp write,

Civilians, however unruly, should not be treated as enemy combatants in their own communities.

We know all about the tools of war. And they are not meant for community policing.

The issue of government-sponsored combat-grade equipment distribution programs made the news most recently as the citizens of Ferguson, Missouri engaged in protests following the shooting death of Michael Brown, an unarmed African American teenager. Yet in April 2013, tthe Center for Policy and Research Fellows took note of a heightened use of military equipment in the aftermath of the bombing of the Boston Marathon. Gallivan and Stepp write,

Though relieved by the ultimate outcome, we were struck by the vast number of armored vehicles and automatic weapons that descended upon Watertown, just outside Boston.

We were also disconcerted by the similarities we saw between the ways in which the law enforcement personnel were outfitted and the gear we as soldiers wore in combat in Iraq.

This experience led us to research the ways in which the U.S. government supplements, funds and equips law enforcement in America. We also sought to understand how this new equipment was being procured, used and managed by its recipients.

The ensuing report, “Costs and Consequences of Arming America’s Law Enforcement with Combat Equipment,” reveals numerous government-sponsored programs designed to provide extensive military weaponry to local police departments at reduced costs, and with no accountability to provide training, to secure equipment storage or even to conduct a periodic equipment inventory.

Gallivan and Stepp describe the equipment, based on their own experience, as “complex, unforgiving and potentially deadly,” and continue,

An offensive posture can elicit or exacerbate a divide between a community’s residents and the officials who have been sworn to protect and serve them. Instead of working together to keep towns safe, orderly and peaceful, the two groups are pitted against one another as adversaries.

As demonstrated so disturbingly in Ferguson, the militarization of police also forces our citizens to defend their own rights on their own land – often directly in the face of terrifying and life-threatening machinery. As soldiers who fought to defend American freedoms and ways of life, this is an affront to our values and service.

The message is clear: Americans need to keep the MRAPS [Mine-Resistant Ambush Protected vehicles] and other military-grade armaments where they belong – in the capable and deserving hands of our armed forces. 

Read the op-ed, Opinion: In wake of Ferguson, rethinking police armaments Read the report, “Costs and Consequences of Arming America’s Law Enforcement with Combat Equipment"

Professor Jessica Miles

Professor Jessica Miles

Professor Jessica Miles on Proposed State Legislation Designed to Protect Victims of Domestic Violence

September 22, 2014

On September 15, 2014, the New Jersey State Assembly passed a package of six bills aimed at protecting victims of domestic violence, including a measure introduced by Assemblyman Joseph Cryan [D-Union], which would bar anyone charged with aggravated assault in a domestic violence case from entering the pre-trial intervention (PTI) program.

While this may seem like a step in the right direction, law experts warn that the punishment of PTI is common in domestic violence cases. In a Star-Ledger article, Professor Miles explains this can present a slippery slope.

This takes away choices from the victim who very much wants to reconcile and make things better with her family. The prosecutor would have only two choices: Proceed to trial or drop the charges. Now, we’re stuck.

Professor Miles summed up the link between domestic violence and pre-trial intervention:

Unfortunately, we see this every day. When a victim wants to reconcile and work on their relationship, it’s not all that uncommon for a prosecutor to respect that decision. Even though this case seems like it would have been a ‘slam dunk,’ you can imagine her [Janay Palmer] taking a stance. She could have claimed she provoked him. And all it takes is one person on the jury to say: ‘Well, maybe she is kind of to blame.’

Read the article on NJ.com, “Ray Rice Case: N.J. Lawmakers Question Prosecutor’s Decision, But Experts Say It’s Common” 

In a recent New Jersey Law Journal article, Professor Miles expressed satisfaction that the Ray Rice controversy is causing the legislature to focus on domestic violence, but she fears that “pending legislation might make things worse”:

If prosecutorial discretion in the handling of domestic violence cases were taken away, it would force prosecutors to drop more cases. Unlike the Rice case, where a video of the altercation is available, physical evidence is sparse in most domestic violence cases. If you have a situation where you have to proceed to trial or drop the charges, a lot more cases are going to be dropped. Giving a prosecutor authority to respect the wishes of a victim who doesn’t want her abuser prosecuted is important, because taking away that right would chill the reporting of abuse cases...[and] could result in victims taking the witness stand and recanting their testimony by blaming their injuries on an accident.

Professor Miles explains that outsiders should not be so quick to judge a domestic violence victim’s reluctance to prosecute his/her abuser. She noted, "Religious pressure, financial pressure, pressure to have a nuclear family and the fear of further abuse all keep victims from implicating their abusers.”

Read the New Jersey Law Journal article, “Lawyers Fear Ray Rice Case Could Stymie Prosecutorial Discretion”


Professor Jessica Miles

Professor Jessica Miles in USA Today, CNN, Time and NJTV on Domestic Violence Case Against NFL Player Ray Rice

September 22, 2014

Professor Jessica Miles, who specializes in domestic violence and serves in the Family Law Clinic of the Seton Hall Law Center for Social Justice, was cited in several news outlets regarding the controversy surrounding Baltimore Ravens running back, Ray Rice, and his now-wife, Janay Palmer. 

Earlier this month, the full video footage from an Atlantic City casino was released which showed Rice beating and dragging Janay Palmer’s unconscious body out of an elevator. Previously, only the part of the video, showing Rice pulling his unconscious wife off the elevator, was released to the public although Rice admitted to hitting his wife and was indicted by a grand jury on aggravated assault charges. As a result of that incident, Rice has been admitted into a pretrial intervention program, which involves probation and anger management counseling. If Rice meets the terms of his program, his record would be cleared.

Initially, the NFL’s response was to suspend Rice for two games. Following the release of the portion of the video showing Rice punching his wife, the Ravens severed Rice’s contract and he has been suspended by the NFL indefinitely. However, there has been extreme backlash regarding the handling of his criminal case and the initial actions taken by the NFL.

Time Online turned to Professor Miles for commentary on the NFL’s response to Rice’s actions:

The NFL showed zero understanding of domestic violence. It’s like they didn’t even Google it.

She went on to explain,

The way the NFL has responded is alarming. Anyone who knows anything about domestic violence would not be surprised that the prosecution did not pursue the case. As an advocate of victim’s rights, I’m disappointed that it appears the abuser got away with it. But I understand where the prosecution is coming from.

If the victim does not press the case – Janay Palmer married Rice a day after his indictment – prosecutors must keep her right to autonomy in mind. Also, losing such a trial could have a devastating effect. Abusive men could feel empowered. It could really hurt future victims. With the video evidence, it doesn’t appear that Rice has much of a legal defense. But as we all know, jury verdicts can sometimes surprise.

Miles goes on to state, “The first thing abusers do is apologize. It’s very, very typical.”

Read the Time Online article, “The NFL’s Epic Breach of Trust”

In an interview with CNN, Professor Miles explained her views on the NFL’s actions and how it promotes victim-blaming:

Janay’s comments are heartbreaking…[yet] still reflecting the ‘victim blaming.’ I think that is part of why people stay . . . they feel some sort of responsibility . . . She is definitely not alone. One in four women is physically assaulted by an intimate partner in a lifetime. Domestic violence costs our country over five billion dollars in lost wages and unpaid medical bills.

When asked why the NFL’s response would further empower abusive men, Miles states:

I think the NFL’s response clearly did. It’s absolutely disheartening. It’s perfectly understandable why the prosecutor dropped charges in light of the reconciliation and the difficulty of proceeding with victimless prosecution. [The NFL's] response being so minimal, compared with punishing everything else that they have punished people for so harshly, gives the message that it’s OK.

Watch the clip on CNN, “NFL Did Not Take Video Seriously”  

When USA Today asked why the legal penalties against Rice not more severe, Professor Miles pointed to Janay Rice’s opposition to testifying as a likely important factor in the prosecutor’s decision:

It’s very difficult if you can imagine a jury sitting and watching, day after day at the trial, Ray Rice’s wife looking lovely, sitting in a gallery, smiling at him as the video - which may or may not come into evidence - is shown. Or perhaps taking the stand as she did at the meeting that the football team sponsored and tried to blame herself.

Miles added that she believes that the prosecutor’s office chose to respect the victim’s decision, even though it is clear that her husband needs help. “I understand why they did that and I’m not alone in being disappointed that that’s what the outcome is.”

Read the USA Today article, “Why Was Ray Rice Given a Lenient Sentence After Being Indicted for Aggravated Assault?”

Regarding the terms of Rice’s pre-trial intervention, in an interview with NJTV, Professor Miles states that he needs something much more comprehensive:

The batterer’s intervention program is a 26-week program. Most anger management programs are 5 to 10 sessions. Anger management is for people in bar fights, fights with coworkers; they can’t control their anger. As we know from everything we had heard about Rice, this is not something he does to other people, this is something he does to his intimate partner. He controls his anger and waits until he is on an elevator when he thinks he is not being watched and then he punches her.

Watch the clip on NJTV: “Senate President Calls for Investigation Into Handling of Ray Rice Case”

Professor David Opderbeck

Professor David Opderbeck

Professor Opderbeck on MSNBC’s Melissa Harris-Perry to discuss internet privacy

September 06, 2014

Professor David Opderbeck, Director of the Gibbons Institute of Law, Science & Technology, participated in a round-table discussion with MSNBC’s Melissa Harris-Perry in a series of segments about the recent hacking of celebrity nude photos of Kate Upton and Jennifer Lawrence, among others. Other topics of discussion included privacy in the digital age, the ways in which corporations use consumers’ personal data, and whether we can do anything to protect ourselves.

Professor Opderbeck explained the legal tradeoff of having an online photo stream account:

The law of privacy as we know it today started to develop in the 19th and early 20th century and we didn’t have these technologies. We had newspapers; we had hard copy; but we didn’t have the average person being able to have that much information out there. Now, we have these technologies that are useful to us because we can keep our information in the cloud because it can always be accessible, but that utility sort of runs up against some old law that hasn’t really kept pace.

Watch the segment, “Is privacy an illusion in the digital age?”

In response to the question of whether we, as private citizens, have a right to privacy, Opderbeck continues:

It’s an interesting dynamic with a public figure and with this question of voluntariness, and that is a line that the law tends to draw. If you voluntarily disclose something, then it’s not private anymore. You’ve disclosed it. And the law has always seen public figures in sort of a different light in the law of privacy. They are running for office. The public has some sort of right to know things about them. It’s the private person who is now interfacing with these information intermediaries when you may not exactly know all of what’s being disclosed- it’s not entirely clear when you’re giving consent and what is voluntary. That is really where I think the legal issue arises.

Watch the segment, “How corporations use your data”

Professor Opderbeck sums up his thoughts on whether we can password protect ourselves out of the realities of corporations and our government having our personal data, and whether privacy breaches are, to some extent, preventable:

I think one of the interesting things here from the legal perspective is that in the 19th or 20th century, the analogy for the Apples or Googles of today might have been, say, the railroads. And we had anti-trust law to deal with that. And when it came to be the case that most people needed to use the railroads, we had to step in and kind of regulate the fees railroads could charge and the way they integrate. And so we still kind of think in the law of Googles and other information intermediaries as something like a newspaper. Not everyone needs to be in a newspaper, but the fact is they are more like the railroads were back then; we really all need to have access, so we need to think in terms of regulatory structure, more along those lines perhaps.

Watch the segment, “Who’s more trustworthy – Apple or the NSA?”

Professor Farrin Anello

Visiting Assistant Clinical Professor Farrin Anello

Professor Farrin Anello in the Star-Ledger regarding the influx of children over the U.S. border

August 03, 2014

Since January, approximately 30,000 unaccompanied children from Mexico and Central America have entered the country. , The Star-Ledger reports that 1,504 of these children now reside in New Jersey, primarily with friends and family. This increased migration raises complex and wrenching questions about the children’s safety, the reasons they are leaving their countries of origin, and how immigration enforcement agencies should respond.

The Star-Ledger cited the example of a woman from El Salvador, now living in New Jersey, who paid a smuggler to bring her young son and daughter to the U.S. after she began receiving demands to pay a monthly protection fee to gang members, or risk her daughter being kidnapped. The Ledger asked Visiting Assistant Clinical Professor Farrin Anello of the Center for Social Justice about a bill recently passed in the House of Representatives that allocates $694 million for immigration enforcement and facilities to hold children who are detained at the border. The bill also gives agents at the border the authority to determine whether a child’s safety is at risk if he or she is returned home, without bringing the child before an immigration judge. The Ledger writes,

Although most of the political debate has focused on reinforcing the borders and responding to the flood of children entering the country from a law enforcement perspective, that approach fails to address this as the ‘refugee crisis’ it is, said Seton Hall assistant professor Farrin R. Anello of the Immigrants’ Rights/International Human Rights Clinic at the law school’s Center for Social Justice.

Anello points to the recent research of Fulbright Fellow Elizabeth Kennedy, who has been interviewing children from El Salvador to better understand the migration.

‘Kennedy points out, for example, that most of the children who had family ties in the United States referenced fear of crime and violence as the underlying motive for their decision to reunify with family now rather than two years in the past or two years in the future,’ she said.

‘In the long term, we need to support the governments of these countries to build less corrupt, more civil societies,” Anello said. “But you have to deal with the problem first. They are children. We need to figure out who needs protection.’

Read the article, N.J. families, legal advocates, and controversy await unaccompanied migrant children

Professor David Opderbeck

Professor David Opderbeck

David Opderbeck appears on TheStreet.com and CNBC as Supreme Court rules streaming service Aereo violates copyright law

June 25, 2014

The Supreme Court ruled in favor of the major cable providers and broadcast companies, and against streaming service Aereo, deeming it illegal. TheStreet.com and CNBC asked Professor David Opderbeck about the ruling itself and its implications.

In an interview with TheStreet.com, Professor Opderbeck explained the Court's opinion:

Justice Breyer ruled that the Aereo service is essentially like a cable television service. He looked at the copyright statute as it was amended in 1976 specifically to deal with cable television providers. He decided Aereo is very much like a cable provider, and would have to fall under one the cable provider exceptions, which it doesn’t.

Although the case focused on technical issues under the Copyright Act relating to broadcast and cable television, the ruling has implications for searchable video services and other Cloud-based providers, such as Google or Dropbox.

If the compromises reflected in the current Copyright Act of 1976 cannot keep up with rapid technological change, the Supreme Court decision may also initiate the need for Congress to create new legislation. Professor Opderbeck summed it up on TheStreet.com:

I think the law will have to adapt and that’s one of the interesting tensions between Justice Breyer’s opinion and the dissent by Justice Scalia. The question is, what does the law really say? Does it really address these new technologies? Justice Scalia says it doesn’t; Justice Breyer says we’ll have to take each one as it comes…

The uncertainty of Justice Breyer’s opinion really does throw all of these technologies into question. We can even ask basic questions about things like Internet hyperlinking: is clicking on a link and streaming a video the same thing or similar to what Aereo does? Some of these issues may have to get addressed by Congress in the future.

And on CNBC:

There ought to be a Congressional response. I disagree a bit about the scope of Breyer’s opinion; he leaves a lot of space in that opinion to suggest that other cloud-based services also might fall within that scope. It’s really unclear and therefore Congress does need to act.

Watch the interviews here:

On TheStreet.com, Aereo Losts Superme Court Case as Justices Side with Broadcasters

On CNBC, Pulling the Plug on Aereo


Professor Mark Denbeaux

Seton Hall Law Center for Policy & Research report on recidivism among GMTO detainees cited in Washington Post story regarding release of Army Sgt. Bowe Bergdahl

June 02, 2014

Shortly after the exchange of five Taliban detainees for the release of Army Sgt. Bowe Bergdahl, the Washington Post published an article addressing the question of how many former Guantanamo detainees have “returned to the fight.” The answer, according to a biannual report published by the Office of the Director of National Intelligence, is that about 16.9% are confirmed to have returned to terrorist activity of some kind, while an additional 12.1% are suspected of having returned to terrorist activity. The article notes that these figures have been challenged, and cites Seton Hall’s Center for Policy and Research:

In particular, a project conducted at Seton Hall University suggested that evidence against former detainees listed in the “suspected” category was sometimes flimsy. Seton Hall also highlighted a number of past detainees who were released from Guantanamo Bay and started careers as diplomats, businessmen and in other civilian jobs.

The article goes on to discuss the specifics of Bergdahl’s release. Read the whole story here:


Professor Mark Denbeaux

Professor Denbeaux in the Associated Press on wrongful death and injury lawsuit filed against a prisoner at Guantánamo

May 26, 2014

Professor Mark Denbeaux was recently quoted regarding a landmark case stemming from the war on terror.

In Utah, an American soldier who was blinded while deployed in Afghanistan and the widow of another soldier who was killed in Afghanistan have jointly filed a $44.7 million lawsuit against Omar Khadr, a former Guantanamo detainee who, in 2010, pled guilty to committing five war crimes when he was 15 years old. In the plea agreement, Khadr admitted to throwing the grenade that caused the Plaintiffs’ injuries. Although Khadr does not currently have assets to fund the monetary damages sought by the Plaintiffs, he recently filed a $20 million wrongful imprisonment lawsuit against the Canadian government, as Khadr has served his sentence in a Canadian detention center since his release from Guantanamo Bay.

The lawsuit that the Plaintiffs have filed against Khadr is unique and has raised several questions. NBC News turned to Professor Denbeaux for commentary on the legal questions surrounding the lawsuit:

Mark Denbeaux, a professor at Seton Hall University who has represented Guantanamo detainees, said he’s never heard of a similar lawsuit filed against a detainee. He called the case “odd” and “quixotic,” and said there are a variety of legal questions that make it hard to calculate what barriers the lawsuit could face.

Denbeaux questioned how [the Plaintiffs] could expect to recover any money from Khadr unless he wins his wrongful imprisonment lawsuit in Canada. If Khadr is found to have been wrongfully imprisoned, that could determine the claims made in the Utah lawsuit.

Additionally, Denbeaux said the Utah lawsuit could open the door for Khadr to seek damages of his own in the U.S.

Read the whole article here.

Hobbs Patrick 125x156

Dean Patrick Hobbs

Dean Patrick E. Hobbs on NJTV-News Describing His Appointment as Ombudsman for NJ Governor’s Office: “I see my role as moving forward”

May 14, 2014

Dean Hobbs appeared on NJTV-News with Mike Schneider to talk about his new role in the Governor’s office, which he will assume the week of May 19.

Dean Hobbs detailed how he will familiarize himself with the office, noting that meetings are already being scheduled with office employees in the Governor’s office. “[If I’m going to serve as an] outlet for people to come to with concerns, then they are going to need to know me. I intend to spend a lot of time meeting with folks both as a group and individually, learn about what they do and try to get them get comfortable with me and my role.”

When asked if he thought the investigation will impact he will do his job, or how the job is viewed inside the Administration, Dean Hobbs described his job as “a forward-action role,” and described his responsibilities in addition to serving as an outlet for office employees: “I’ll . . . work with the Chief Counsel to hire a Chief Ethics officer, to begin to review the practices within the offices, the protocols, what type training of currently is available and to start to create best practices within the office.”

As NJTV reports,

According to Hobbs, the governor is working to have a better functioning executive branch.

“I certainly know that from my conversation with the governor and the chief counsel, they’re determined to have a high functioning executive branch and to the extent that they think I can do that, I’m going to work as hard as I can for the citizens for New Jersey,” Hobbs said.

Watch the NJTV-News broadcast, Ombudsman Hobbs Begins Duties Next Week.

Judge Julio Fuentes, Justice Sotomayor and Judge Chagares

Justice Sotomayor with Judges Fuentes and Chagares

Moot Court Competition Finalists Argue Before Justice Sonia Sotomayor, Featured in The New Yorker

May 06, 2014

The New Yorker magazine attended the Eugene Gressman Appellate Moot Court Competition final round, where, on April 10, Justice Sonia Sotomayor presided alongside Judges Michael A. Chagares ’87 and Julio M. Fuentes of the Court of Appeals for the Third Circuit.

Teams Karol Ruiz ’14 and Christopher Keating ’14 - both, Center for Social Justice Scholars - and Justin Ferrone ’15 and Brian Spadora ’15, argued their cases before a packed audience in the Law School’s Larson Auditorium. The story appears in the May 12 edition of the New Yorker’s famed “Talk of the Town.”

The reporter describes an energetic presentation:

Justin Ferrone, a second-year student whose summer plans include an externship at Debevoise & Plimpton in New York, was the first up, arguing on the petitioner’s side. Within minutes, he had cited a judgment that Sotomayor rendered while she was a judge on the Court of Appeals for the Second Circuit. ‘Well, was I right?,' Sotomayor responded, to general laughter. Ferrone was not thrown entirely off balance. ‘With all due respect, Your Honor, I think your position is wonderful,’ he said. Ferrone’s co-counsel, Brian Spadora, a second-year student and a former newspaper reporter, also cited a phrase from one of Sotomayor’s earlier decisions. Sotomayor corrected him. “I think that was my colleague’s line,' she said.

’It’s a good line; you should take credit for it,’ Spadora replied.

Karol Ruiz, who was brought to the U.S. from Colombia as a young child and now advocates for the rights of other children in her position, found a deep connection to Justice Sotomayor when she read the Justice's autobiography:

When Sotomayor wrote, in 'My Beloved World,' about the generosity of her grandmother, it put Ruiz in mind of her own family, she explained. ‘She was the first Supreme Court Justice to use the term ‘undocumented immigrants,’ and she used it in her first opinion,’ Ruiz said. ‘I grew up an undocumented immigrant, and she really inspired me to show her what we can do.”

The profile also describes the competing teams’ excitement after they presented their arguments before the Justices. While Ferrone and Spadora described their own experiences, Chris Keating ’14 most likely spoke for the entire assembled audience when he said, “It’s amazing, making eye contact with Justice Sotomayor,’ he said. ‘You’re thinking, This Justice is actually listening to the words that are coming out of my mouth.'

This article is currently available by subscription only. Visit the New Yorker website at newyorker.com/magazine.


Professor Rachel Godsil

Rachel Godsil Appointed New Chair of New York City Rent Guidelines Board as reported by The Real Deal and New York Crain’s Business

April 24, 2014

New York City Mayor Bill de Blasio appointed Professor Rachel Godsil to lead the board that determines annual rent adjustments for approximately 1 million apartments across the city that are subject to the Rent Stabilization Law.

The Mayor’s press release cites Professor Godsil’s credentials: “Godsil is an accomplished attorney and professor specializing in issues of housing, land use and social justice. She is a former Assistant United States Attorney for the Southern District of New York, and previously clerked for John M. Walker of the Second Circuit Court of Appeals.” New York Crain’s Business also notes,

She is a co-founder and research director for a national consortium of social scientists and law professors, the American Values Institute, focusing on the role of implicit bias in law and policy. And she previously clerked for John Walker of the Second Circuit Court of Appeals.

According to real estate blog, The Real Deal, “The new members are expected to slow the pace of rent hikes that existed under the Bloomberg administration,” which is underscored by Crain’s:

“Prior to his election as mayor, Mr. de Blasio was a vocal advocate for a rent freeze, which would be a first for the Rent Guidelines Board. Since its inception in 1969, the board has never failed to raise rents. Last year, it allowed increases of up to 4% for one-year lease renewals and up to 7.75% for two-year leases.”

As Crain’s concludes,

Earlier this month, a spokesman for the mayor told The New York Times that Mr. de Blasio was ‘seeking balanced candidates who understand the needs of low- and moderate-income tenants.’

Read the New York Crain’s article, De Blasio to name new Rent Guidelines Board chair

Read the Real Deal blog post, De Blasio to appoint Rent Guidelines Board chair today

Read the press release from Mayor de Blasio’s office

Read Professor Godsil’s biography on the Seton Hall Law faculty page


NEW YORK—Mayor de Blasio today announced the appointment of Rachel Godsil as Chair of the Rent Guidelines Board. The Rent Guidelines Board.

Godsil is an accomplished attorney and professor specializing in issues of housing, land use and social justice. She is a former Assistant United States Attorney for the Southern District of New York, and previously clerked for John M. Walker of the Second Circuit Court of Appeals.

The Mayor previously appointed Sarah Williams Willard as an owners’ representative, Cecilia Joza and Steven Flax as public members of the board, and Sheila Garcia as a tenant representative. The Mayor also re-appointed current tenants’ representative Harvey Epstein to the board.

About Rachel Godsil

Rachel Godsil currently serves as the Eleanor Bontecou Professor of Law at Seton Hall University School of Law. Godsil’s areas of expertise include property, land use, environmental justice, education and race. Her recent property work focuses on the mortgage crisis and eminent domain, as well as the intersection of race, poverty and land use decisions.

Godsil previously clerked for John M. Walker of the Second Circuit Court of Appeals and was an Assistant United States Attorney for the Southern District of New York. She was an associate counsel at the NAACP Legal Defense and Educational Fund, focusing on environmental justice, as well as an associate with Berle, Kass & Case and Arnold & Porter in New York City.

After serving as the convener for the Obama campaign’s Urban and Metropolitan Policy Committee and an advisor to the Department of Housing and Urban Development transition team, Professor Godsil co-directed a report to HUD Secretary Shaun Donovan.

She joined Seton Hall University School of Law in 2000 and has been recognized for her teaching by being nominated for Professor of the Year in 2002 and 2003. She was named Researcher of the Year in Law by Seton Hall University. She has also taught at the University of Pennsylvania Law School and New York University Law School. Godsil lives in Brooklyn.

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Seton Hall Law Career Services

Seton Hall Law in the National Law Journal, ranked in the Top 30 for Class of 2013 graduates' employment outcomes

April 23, 2014

The National Law Journal published an infographic detailing the employment data that all law schools submitted to the American Bar Association in March 2014, reflecting the Class of 2013 employment outcomes. The graphic, "Which Law Schools are Tops for Jobs?," offers a variety of categories for consideration. To quote the NLJ,

Here, we look at which law schools placed the highest percentage of new graduates in full-time, long-term jobs that require bar passage but were not funded by the schools themselves. We also highlight schools that placed the most graduates in large firm jobs, federal and state clerkships, and government and public interest jobs.

Seton Hall Law was ranked 28th among all law schools for the percentage of Class of 2013 graduates landing jobs requiring passage of the bar exam.

Seton Hall Law was also ranked #1 among law schools sending Class of 2013 graduates to state-level clerkships.

View Seton Hall Law's employment data, including the latest post-clerkship survey results, here.

Read the National Law Journal article, "Which Law Schools are Tops for Jobs?"

Hobbs Patrick 125x156

Dean Patrick Hobbs

Dean Patrick Hobbs quoted in the Star-Ledger and Philadelphia Inquirer regarding appointment as Ombudsman in the Governor’s office

April 17, 2014

Numerous national and regional media outlets reported on Governor Christie’s appointment of Dean Hobbs as the state’s first Ombudsman for the governor’s office. According to the Star-Ledger, the Ombudsman role was created to “keep watch for wrongdoing, bolster ethics training and improve email communication policies within the governor's office.”

Dean Hobbs responded to questions regarding the independent nature of the new position: “I would not have taken on this role if I did not have those assurances from the governor," he said. "He wants me to come in and do what I think needs to be done, and I'll have all the resources and autonomy to do that."

The Inquirer quoted Dean Hobbs further regarding his view of the role:

He said his work with the investigation commission would serve as "a natural jump-off to this position." While he will be focused on establishing a system for staff to voice concerns and ensuring proper ethics training, the role is "wide open," Hobbs said. He said he would be "taking a look at the entire functioning of the office."

Read the Star-Ledger article, Christie names Seton Hall dean as ombudsman in response to bridge scandal review

Read the Philadelphia Inquirer article, Christie chooses law dean as his office's ombudsman

Professor Mark Alexander

Professor Mark Alexander

Professor Mark Alexander publishes an op-ed in The Record regarding McCutcheon v. FEC and its impact on campaign contribution limits

April 16, 2014

Professor Alexander writes on the impact of the Supreme Court ruling which has essentially eliminated campaign contribution limits for individuals. In the case, Shaun McCutcheon, a wealthy businessman from Atlanta, asserted that existing campaign contribution limits, which cap the aggregate amount an individual may donate in support of their choice political candidates, inherently compromises his ability to exercise his right to free speech. Giving the historical perspective, Professor Alexander writes:

The U.S. Supreme Court agreed that McCutcheon and all wealthy individuals should be allowed to spend hundreds of thousands, or even millions of dollars if they so choose. The court pinned its misguided decision on a my opic interpretation of a 1970s case, Buckley v. Valeo. In that case, the court essentially equated money and free speech. The argument goes that political spending is akin to political speech, so it deserves First Amendment protection. Likewise, individual contributions to campaigns are seen as expressive activity, deserving First Amendment protection.

But, as with all constitutional rights, speech rights can be regulated if there is a “compelling governmental interest.” In Buckley, the Supreme Court explained that (in the immediate aftermath of the Watergate scandal) political contributions to candidates could be limited in order to prevent actual corruption or the appearance thereof. In last week’s McCutcheon decision, the court read that concept narrowly to allow contribution limits only when there is some sort of quid pro quo contribution, like bribery.

Professor Alexander’s objections to the ruling are three-fold:

First, it limits the ability of legislatures to regulate the corrupting influence of money in politics. Second, it undermines the principle of a political system where all people can participate, and all voices can be heard on an equal basis. Third, when considered with other recent cases involving politics, it erodes the people’s faith in our government. Together, these three problems have a very negative impact on our system of government.

And as he asserts:

The millions that will be donated by the wealthiest few will unequally fund campaigns, far more than is already the case. The resulting inequality means that those with the most money — the one percent of the one percent — have a dramatically greater access and influence in our political system than all the rest of us.

In conclusion, Professor Alexander expresses his concern that since 2000, when the Supreme Court played a pivotal role in the presidential election of George W. Bush versus Albert Gore, the Court is becoming more politicized in its rulings:

The problem in all these decisions is that the court can be seen more as an interested political player and less as a neutral referee in our tripartite system of government. The three branches are meant to check each other, ultimately to protect the best interests of the people. But these decisions have given the people reason to wonder if the U.S. Supreme Court is just a bunch of political appointees who enforce a partisan view of the world, and not honest brokers in the great constitutional debates of our time.

Read the op-ed, How Ruling on Campaign Cash Impacts Democracy


Justice Sotomayor

Justice Sotomayor’s visit to Seton Hall Law highlighted in The Bergen Record and WBGO-FM

April 11, 2014

Seton Hall Law welcomed Justice Sotomayor of the Supreme Court of the U.S. to Seton Hall Law on April 10. She served as the keynote speaker for the annual Diversity Speaks Distinguished Speaker series and was the guest of honor at a series of receptions and talks with students, including those participating in the New Jersey Law & Education Empowerment Project (N J LEEP). That evening, Justice Sotomayor presided along with Judge Michael Chagares and Judge Julio Fuentes of the U.S. Court of Appeals for the Third Circuit at the final round of the Eugene Gressman Appellate Moot Court Competition.

The Bergen Record writes of her lecture,

Associate Supreme Court Justice Sonia Sotomayor is keenly aware that her personal story is inspirational – from a childhood in public housing in The Bronx she became the first Latino on the highest court in the land. And that awareness, she said, compelled her to write her memoir, “My Beloved World.” “There were so many people I wanted to touch and I couldn’t,” she said.

Sotomayor was introduced by law school student Leidy J. Gutierrez, an immigrant from Colombia, who said the justice’s “life bears living witness to the promise of a good education.” Sotomayor, in turn, told Gutierrez: “You inspire me and give me hope about the future. You’re going to do things I couldn’t finish.” Sotomayor, 59, said one of her goals is to meet regularly with students – beginning in middle school – to stress the value of education, which she called the only way to narrow the widening socioeconomic gap in the country.

While needing to avoid comment on matters that might come before the court, she did offer opinions on the legal profession. On being a woman and minority in law, she allowed: “People don’t expect much from you … But boy does it feel good to prove people wrong.”

Sotomayor urged the students in the audience to seek out broad legal experience. She said judges too often are drawn only from the ranks of prosecutors and that more perspectives, such as those of defense and civil practice attorneys, are needed. “We will lose something if we don’t bring a broader range of experience to the bench,” said Sotomayor. And she offered this advice to the future lawyers assembled: “Spend a lot of time ignoring the naysayers and do what you feel is right.”

In its broadcast, WBGO-FM quoted Justice Sotomayor: “Our jobs as individuals is to go back to our communities those we came from and those we may just be a part of tangentially and inspire other kids to continue on this path that’s our individual obligation.”

Read the Bergen Record article, U.S. Supreme Court Justice Sotomayor talks about her memoir at Seton Hall

Hear the radio broadcast, Supreme Court Justice Visits with Seton Hall Law Students


Professor Jonathan Hafetz

Professor Jonathan Hafetz in McClatchy DC regarding recently declassified report on CIA interrogation practices

April 04, 2014

Professor Jonathan Hafetz was recently quoted on the issue of CIA interrogations, the subject of the Senate Intelligence Committee’s recent report that is currently on its way to the White House. The article sheds light on the Senate report, acknowledging that the CIA “flagrantly abused some detainees and held some without legal authorization.” Some experts predict that this report will pressure the executive branch to address and alter the U.S.’s torture policy and that it will incite litigation, potentially including civil actions brought by those abused by the program and legal action in international or foreign courts.

The contents of the cumbersome report, which cost approximately $40 million to conduct and amounted to over 6,300 pages of findings, were declassified by an 11-3 vote on April 3. The report analyzes how the CIA handled detainees after the 9/11 terrorist attacks, revealing that CIA officers employed interrogation tactics that were not approved by the necessary authorities. The agency illegally detained 26 out of their 119 detainees and repeatedly misled the Justice Department.

The article goes on to discuss the federal government’s hesitancy to declassify this information and to impose liability on the officers responsible for the violations. McClatchy included Professor Hafetz’s commentary:

The courts have been extremely resistant to any form of civil liability so far, not because the evidence wasn’t available, but because the courts did not want to get into this.

The article goes on to state:

Even with its graphic details, Hafetz said he doesn’t think the Senate committee’s report is a legal ‘game changer.’ Civil litigants will still face judges reluctant to second-guess national security decisions, and federal prosecutors will still face a president intent on looking forward.
But the report will still have impact.
‘It will help shape the public narrative about the torture program,’ Hafetz said.

Read the story, Senate's findings on CIA interrogations likely to become roadmap for litigation, here.


Professor Stephen Lubben

Professor Stephen Lubben blogs in the New York Times’ Dealbook, ‘Giving a Debtor a Big Club Against Lenders’

April 03, 2014

Professor Stephen Lubben authored an article in the Dealbook section of the New York Times considering the implications of a recent federal district court opinion, Meridian Sunrise Village v. NB Distressed Debt Investment Fund Ltd., for distressed debt investors and loan investors. The case involves an issue that arose when Bank of America sold its part of a loan, which it shared with U.S. Bank and others, to a distressed debt investor.

The general rule is that a debtor has the right to approve any loan transfers, so long as consent is not unreasonably withheld, except that a debtor in default loses the right to consent. Here, the debtor was in Chapter 11 bankruptcy proceedings, so it would seem that the debtor lost the right to approve any loan transfers. Both the bankruptcy court and the district court, however, disagreed because the loan agreement limited loan transfers to “financial institutions,” and the courts found that hedge funds are not “financial institutions.”

Professor Lubben criticizes the district court’s interpretation, writing:

The court’s argument that financial institutions should be interpreted as entities that make loans almost proves the point, as hedge funds are increasingly making direct loans themselves. And did the court really mean to say that a mutual fund or an exchange traded fund could not buy a stake in this loan?

The clause in question might have more reasonably been interpreted to prohibit assignment of the loan to individual investors. But the Washington courts did not seem to be too worried about the broader context in which this loan exists.

Professor Lubben goes on to discuss a number of other reasons why the opinion is problematic, including the court’s view that the hedge fund’s subsequent transfer of part of its loan from Bank of America to another fund was an “an attempt to manipulate the Bankruptcy Code’s voting rules,” while the same transfer by a bondholder to another creditor would probably not have caused the court to object.

He concludes by emphasizing the importance of the opinion:

Why is the opinion important? Because you can expect to see it in a Chapter 11 case soon. After all, this is an appellate decision that gives the debtor a great big club against its lenders. Why not try to use it?
Read the New York Times' Dealbook Article, "Giving a Debtor a Big Club Against Lenders."

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Professor Paula Franzese

Professor Paula Franzese interviewed on MSNBC regarding the TransCanada Pipeline and eminent domain

March 29, 2014

Professor Paula Franzese appeared on MSNBC's news show, "Disrupt with Karen Finney," to discuss the TransCanada Pipeline and eminent domain. Texas has delegated the takings power (a prerogative reserved for government to advance the public good) to TransCanada, a private foreign corporation, essentially allowing the company to take private property against homeowners' will to make way for the ambitious pipeline. That delegation is constitutionally suspect, and has inspired a split of authority among state courts, with Nebraska deeming it impermissible and Texas declining to do so. Julia Crawford is a Texas landowner fighting the taking of her property.

At issue is the significant question, can the takings power lawfully be delegated to an entity other than a regulatory agency or government arm, and instead be vested in a private corporation that inherently is not a fiduciary of the public trust? Moreover, the case raises the important question of how best to accommodate the benefits that the pipeline could bring (more jobs, potentially cheaper oil prices) against private property rights and environmental harms.

Watch the MSNBC news show here.

Professor Linda Fisher

Professor Linda Fisher

Professor Linda Fisher in the Washington Post/Bloomberg regarding foreclosures in New Jersey

March 26, 2014

Professor Linda Fisher was quoted in an article published by the Washington Post/Bloomberg about the foreclosure crisis in New Jersey. New Jersey now has the highest number of residential mortgages that are seriously delinquent or in foreclosure. The rising number of homeowners losing their homes at this time, after years of not making mortgage payments, is a result of banks finally making their way through a significant backlog of delinquent loans that had been suspended.

To avoid court delays in the judicial foreclosure process, some hedge-fund investors are purchasing delinquent mortgages at a discount price and modifying loans. If modification is not possible, investors are paying homeowners to “hand over keys or sell for less than what’s owed.” However, investors are generally avoiding hard-hit urban neighborhoods.

Professor Fisher is helping neighborhoods, such as Newark and Irvington, research plans to use government eminent domain power to seize properties and reduce homeowner debt. This plan would allow homeowners to make affordable payments by offering fair-market value for the loans and reissuing them to homeowners.

The Washington Post/Bloomberg writes:

Many largely black and Hispanic communities in New Jersey and elsewhere were targeted for predatory loans during the boom, said Linda E. Fisher, law professor at Seton Hall University, who is helping the cities research the eminent domain proposal.

Fisher is also campaigning with residents on her block in the town of Montclair to encourage the bank, which owns a vacant property two doors down from her, to clean it up and resell it. The house, which has been empty for three years, was stripped of pipes. It attracted squatters who moved in a stove and a flat screen television, she said…

“Here we are in our middle- and upper-middle-class community and we’re seeing the same problem of poor maintenance by servicers,” Fisher said. “The foreclosure crisis has had ripple effects and it is not limited to poor communities of color where it’s concentrated.”

Read the full story, "Foreclosures Climaxing in New York-New Jersey Market: Mortgages," here.

Professor Michael Risinger

Professor Michael D. Risinger

Professor Michael Risinger comments in the New Jersey Herald on the release of a man held on murder charges

March 04, 2014

Professor D. Michael Risinger, Associate Director of the Last Resort Exoneration Project, commented on the case of Valentino Ianetti, who was held for four years after his wife was found stabbed to death in their home. Ianetti was released after the defense submitted findings from an alternate pathologist who suggesting that Pamela Ianetti’s death was, instead, a suicide.

The case has against Ianetti has been dismissed “without prejudice,” which gives the Sussex County Prosecutor’s office the leeway to re-open the case and press charges again if new evidence comes to light. Ianetti’s attorney is fighting for the charges to be dropped “without prejudice”:

Michael Risinger, a professor at Seton Hall University School of Law and associate director of the Last Resort Exoneration Project, said he is unaware of any legal mechanism that dismisses murder charges with prejudice, especially if there are disagreements among the state’s and defense’s forensic pathologists.

The former Sussex County medical examiner, Dr. Junaid Shaikh, determined the cause of death to be homicide caused by the stab wounds. The defense challenged those findings and offered evidence from another forensic pathologist of suicide based on the number of non-lethal wounds inflicted before the final deadly wounds and evidence indicating a large number of prescription opioids taken by Pamela Ianetti.

In August, Sussex County First Assistant Prosecutor Gregory Mueller asked Judge Thomas J. Critchley in Morristown to dismiss the charges without prejudice. The judge agreed and Ianetti was let out of jail.

Risinger praised the prosecution for “living up to his professional responsibilities” to not move forward with bringing the case to trial if a reasonable jury would have reasonable doubt.

When asked about Ianetti filing a civil suit, Risinger said he would not expect one to be successful, citing the difficulty in proving liability for a medical examiner or prosecutor’s office.

“I just don’t see a lawsuit here even though I feel sorry,” he said. “It is a terrible injustice, but it’s one of those kinds of injustices where the law treats it like a natural disaster; no one is legally responsible for that.”

He added: “People are held for long periods of time and then acquitted, and it’s an unfortunate cost of citizenship in a way.”

Read the full story, “Prosecutor says murder charges for Stanhope man should stay,” here


Professor Lori Nessel

Professor Lori Nessel quoted in NBC News article on potential medical repatriation of comatose student from Pakistan

February 20, 2014

Professor Lori Nessel was quoted on the issue of medical repatriation in an NBC News article focusing on a specific case in which a 20-year-old Pakistani citizen who was enrolled in a one-semester study abroad program at The University of Wisconsin-Superior fell into a coma resulting from a car accident.

Comatose since November 2013 through at least late-February 2014, at which time this article was published, the 20-year-old student’s $350,000 medical bills exceeded his $100,000 emergency medical insurance policy and the hospital at which he was being treated sought to return him to Pakistan, despite the risk that the 24-hour flight might pose to his health due to his comatose state.

This case illuminates the underlying issue of medical repatriations. Professor Nessel co-authored a 2012 study, “Discharge, Deportation, and Dangerous Journeys: A Study on the Practice of Medical Repatriation,” in partnership with New York Lawyers for the Public Interest. The report found that, spanning the previous six years, there were at least 800 cases in which immigrant patients who were unable to fund their hospital bills were returned to their countries of origin. The study states that U.S. hospitals are required to provide emergency medical care to immigrant patients, both documented and undocumented, “but this obligation terminates once the patient is stabilized.”

Professor Nessel elaborates on this issue, explaining:

‘[S]tabilized’ is a term of art – they can still be in critical condition. But at that point, [the hospitals] don’t have to continue to treat them . . . No government agency provides oversight . . . it’s an unregulated black hole. People are being forced to go back to their native countries where they’re not going to get the kind of care they need – which could deprive them of their life.

Read the article, “Family Fights to Block Deportation of Comatose Exchange Student”.

Matthew Feinstein

Matthew Feinstein

Matthew Feinstein ’09 and Kama Jones-El, a graduate of the New Jersey Law & Education Empowerment Project in the Huffington Post

February 19, 2014

Matthew Feinstein ’09, Associate Director of the New Jersey Law and Education Empowerment Project (NJ LEEP), recently wrote a blog post in the Huffington Post, describing the experience of Kama Jones-El, a student with whom he has worked at NJ LEEP over the last five years. NJ LEEP is a four-year, college access program available to underserved middle and high school students.

Kama was raised in a single-parent, low-income household and graduated from a Newark high school. Her intellectual curiosity, together with support from her family, led Kama to actively pursue her dreams. With the help of NJ LEEP, Kama was given direction and support to help actualize her academic potential. She now attends one of the top liberal arts colleges in the country, as a freshman at Bowdoin College.

Upon beginning her classes at Bowdoin, and despite her best studying efforts, Kama was confronted with a 49 on her first biology exam. What she did next made all the difference. Kama reached out to Feinstein at NJ LEEP, who directed her to use the resources Bowdoin offers, from teacher office hours to study groups. “Expecting the hardships, planning for them and being unafraid to say ‘I need help’ are some of the most essential skills a college student can develop,” Feinstein writes.

Kama worked hard to implement a new studying strategy, and the results of her efforts were apparent from her improved exam grades. Despite the frustrations and setbacks, Feinstein notes that “Kama’s family did not raise her to quit,” and that Kama’s discomfort was “an opportunity for growth” because she was honest with herself early on and sought the help that she needed.

Feinstein notes that Kama is one of over 40,000 students in Newark. He concludes, “The question that remains is what will we do – as a community of private citizens, large corporations, social service organizations and so many more – to help all students have the opportunity for empowerment that Kama has created for herself.”

Read the full story, “Making the ‘Leep’ to College, Together” here.

Paulette A. Brown '76

Paulette A. Brown '76

New York Times announces the nomination of Paulette Brown ’76 as the next President of the American Bar Association

February 12, 2014

Paulette A. Brown ’76 has been nominated as the next President of the American Bar Association (ABA), with her term beginning in 2015. Brown is a partner at Edwards Wildman Palmer, specializing in labor and employment law and commercial litigation in Madison, New Jersey. She is also a member of the Seton Hall Law Board of Visitors. The New York Times writes,

If elected, Ms. Brown will serve as president-elect for one year and then become president in August 2015. She will be presiding over an association whose membership is facing technological, economic and other challenges in the way they operate. Two recent independent surveys of large and regional law firms found that revenues were almost flat last year in contrast to 2012 as firms struggled to attract and retain business during a turbulent economy.

Ms. Brown, who is the chief diversity officer at her firm, said in a phone interview that she wanted 'to cast a wider net to bring more diversity in minorities, the disabled, L.G.B.T., people of color and even generational diversity' to the association.

Its membership ranks are growing, she said, but the association needs 'to respect and include lawyers in all practice areas and types, from solo practitioners to members of our largest international law firms, as well as public servants and in-house counsel.'"

Read the story, "A.B.A. Nominates New Jersey Lawyer as President"

Professor Margaret Lewis

Professor Margaret Lewis

Professor Margaret Lewis in Agence France-Presse on an execution that took place in China

February 11, 2014

Professor Margaret Lewis was quoted in an article published by the Agence France-Presse about a family in China whose patriarch was executed shortly after communicating his hopefulness for acquittal. The family was not notified before the execution took place; they discovered his death by viewing a notice posted at a courthouse.

This occurrence incited a public outcry concerning China’s “murky criminal justice system and aggressive, sometimes unpredictable, use of capital punishment.” China is believed to have the highest execution rate in the world. Although China has decreased its judicial killings and its crimes eligible for capital punishment in recent years, the exact number of executions is still unknown, as the country does not publicize its figures.

The article explains that a majority of Chinese citizens support the death penalty but believe its application is “unequal and unfair.” In addressing the importance of public opinion, the article quotes Professor Lewis who stated, “The judges are sensitive that they should be aware of what the public thinks about a case.”

Read, “Execution with no farewell spotlights China death penalty” here.


Professor Stephen Lubben

Professor Stephen Lubben in the New York Times’ Dealbook on Puerto Rico’s current financial difficulty

February 06, 2014

Professor Stephen Lubben published an article in the DealBook section of the New York Times regarding Puerto Rico’s current financial situation, in which, Professor Lubben points out, the country was recently downgraded to “junk status.”
In the article, Professor Lubben evaluates the various theoretical solutions for Puerto Rico’s debt and their corresponding obstacles. Professor Lubben explains that after the United States acquired Puerto Rico, the U.S. Supreme Court ruled that the Constitution is inapplicable to Puerto Rico. This ruling, Professor Lubben states, “left the island in a kind of legal limbo” because it is not a state.
So, Professor Lubben says:

[Y]ou might think [Puerto Rico] could file for Chapter 9 bankruptcy, just as Detroit and Jefferson County, Ala., have done. But no, Puerto Rico is also not a municipality, which is defined in the federal Bankruptcy Code as a ‘political subdivision or public agency or instrumentality of a State.’

Without bankruptcy to help it solve its debt problems, maybe Puerto Rico could rely on sovereign immunity. Argentina, a far less sympathetic debtor, has used that to great ends.

But Puerto Rico is not a sovereign nation either. The First Circuit Court of Appeals in Boston has suggested that Puerto Rico has sovereign immunity under the 11th Amendment to the Constitution. But that seems odd, given that the island is clearly not a state or a foreign state, and the amendment uses those terms.

Puerto Rico might have some sort of ‘common law’ sovereign immunity, but that’s mostly just guessing at this point, because there is little case law on the point.

Professor Lubben goes on to describe the implications of Puerto Rico’s lack of a financial remedy:

Without bankruptcy, Puerto Rico has no way to bind creditors to any sort of debt exchange offer that might address its problems. And without sovereign immunity, it may be that any creditors holding out for a better deal could run around bringing suits against the island, and obtaining judgments that might enable them to take pieces of property that should rightly belong to the Puerto Rican people.

Read the New York Times’ Dealbook article, Answer to Puerto Rico’s Debt Woes? It’s Complicated


Professor Stephen Lubben

Professor Stephen Lubben blogs in the New York Times’ DealBook, "A Safe Harbor Without Full Protection”

January 22, 2014

Professor Stephen Lubben, who writes a regular feature column in the New York Times’ DealBook section, published an article considering the “so-called” safe harbor provisions of the bankruptcy code in light of a recent New York bankruptcy ruling. He questions the lack of efforts to enact the safe harbor provisions in state courts, and challenges the genuineness of Congress’ stated goal that the provisions are primarily intended to reduce systemic risk.

Professor Lubben writes:

A recent ruling by a bankruptcy judge in New York adds to a growing body of opinions that appear to leave the door open for actions under state law that would normally be prohibited in federal bankruptcy proceedings.

The issue concerns the so-called safe harbor provisions of the bankruptcy code, which exempt derivatives and other securities transactions from the usual stay that blocks creditors’ efforts to collect debts. Last week, Judge Robert E. Gerber of Federal Bankruptcy Court in Manhattan ruled in a lingering part of a case involving the Lyondell Chemical Company that the safe harbor provisions applied only to the bankruptcy process.

His decision joined the mini-trend of court opinions that do not extend the exemptions to state courts. That is, while a bankruptcy trustee or debtor might be precluded from bringing a fraudulent transfer action in bankruptcy court, creditors retain their right to do so under nonbankruptcy state law. In the Lyondell case, Judge Gerber refused to dismiss a lawsuit initially brought in New York State court that seeks to claw back $12.5 billion paid to shareholders as part of merger deal.

Given the statutory language of the bankruptcy code, this seems like the right result. But consideration of the justification for the safe harbors makes this a somewhat more difficult matter.

Read the full NY Times’ DealBook article, "A Safe Harbor Without Full Protection."


Professor Jonathan Hafetz

Professor Jonathan Hafetz in Politico regarding President Obama's Speech on the NSA

January 17, 2014

Professor Jonathan Hafetz authored an op-ed in Politico in response to President Obama’s recent speech regarding government surveillance. Professor Hafetz’s op-ed questions the constitutionality of the surveillance programs and examines the President’s goals in delivering his speech, presenting an analysis of speeches the President has previously delivered on similar issues of public concern.

In a general evaluation of the President’s message, Hafetz comments:

As an act of political positioning, the speech might help Obama in the public relations moment, but it’s unclear if the former constitutional law professor has actually promised enough to put his administration and the government on the right side of the Constitution.

Professor Hafetz explains that the President’s vow to end the program may be a façade; he writes:

But Obama stopped short of adopting a number of changes advocated by his own advisory panel on the issue, a group of experts and academics he convened to examine possible reforms. Instead, what the president is more likely showing is a different kind of balancing, a move to tinker just enough to quiet critics, but not enough to significantly disrupt the status quo.

Hafetz concludes by addressing concerns about foreign relations. He writes:

In addition, mass surveillance imperils our relationships with foreign governments—not just because they don’t support it (as with Guantanamo), but also because they (and their citizens) feel victimized…..Spying may be hard, but the president might find curtailing the fallout even harder.
Read the full op-ed, “Is Obama Failing Constitutional Law?” here


Professor Michael Simkovic

Professor Michael Simkovic named #5 Among the Most Influential People in Legal Education by National Jurist Magazine

January 07, 2014

Professor Michael Simkovic was ranked #5 among the “Most Influential People in Legal Education in 2013” by National Jurist magazine. To compile the list, the National Jurist editorial team asked law schools to submit nominees, then narrowed the selection and solicited input among law school deans and other influential members of the legal community.

Professor Simkovic was selected due to a research paper co-authored with Frank McIntyre entitled,“The Economic Value of a Law Degree,” in which the co-authors conclude that the increased earnings attributable to a law degree, compared to a terminal bachelor’s degree, are worth $1 million in present value as of the start of law school.

Simkovic, who usually studies credit markets, started investigating law degree earnings premiums after researching student loans. While conducting that research, Professor Simkovic discovered that default rates for law students were extremely low, even at low-ranked institutions. These low default rates suggested that the overwhelming majority of law graduates probably earn more than enough to recoup the costs of their degrees.

Simkovic and McIntyre’s conclusions sparked a great deal of pushback, especially from bloggers who had criticized legal education amid declining employment and salaries for recent graduates. Untroubled by the controversy it raised, Professor Simkovic defends the $1 million figure as consistent with the data and proper statistical methods. He considers the claim that legal education does more harm than good implausible in light of the many studies showing that education enhances earnings even in trying economic times.

“The story being told is that education is the problem,” Professor Simkovic said. “That’s not the case. Education helps bring down unemployment and increase earnings. Young people in general are struggling because of the economy, but there is no law-specific problem.”

Read the full article in The National Jurist, “2013 Most Influential People in Legal Education”

Read Professor Simkovic’s research paper, “The Economic Value of a Law Degree”


Professor Jonathan Hafetz

Professor Jonathan Hafetz in the Los Angeles Times regarding conflicting decisions on the constitutionality of the NSA’s collection of metadata

December 28, 2013

Professor Jonathan Hafetz appeared in the Los Angeles Times in an article regarding recent rulings on the issue of whether or not the NSA’s wholesale collection of metadata violates the Fourth Amendment ban on unreasonable searches. Judge Pauley, a district judge in New York, decided that it does not violate the Constitution, while just two weeks earlier Judge Leon, a district judge in Washington D.C., ruled that it does. Both rulings are likely to be appealed.

The Los Angeles Times writes:

The two rulings are "like night and day," said Jonathan Hafetz, a law professor at Seton Hall University in New Jersey.

Hafetz, a former American Civil Liberties Union lawyer, said the two rulings stemmed from very different views of what the 4th Amendment's ban on unreasonable searches means in the modern era.

"Judge Pauley has a much more conservative view on the 4th Amendment, where Judge Leon is more willing to recognize how rapidly changing technology requires rethinking how to interpret the 4th Amendment," he said.

Read the full Los Angeles Times article, “New judge, new ruling on spying”


Karol Ruiz '14

Karol Ruiz '14 on Latino news show "Tiempo" to discuss new bill benefitting undocumented students

December 20, 2013

Karol Ruiz ’14 appeared on Latino issues talk show “Tiempo” on ABC’s local affiliate, Channel 7 with New Jersey State Senator M. Teresa Ruiz and Anna Maria Tejada, President of the Hispanic Bar Association of New Jersey, to discuss New Jersey’s version of the Dream Act. The State Senate has passed legislation which would allow undocumented students to pay in-state tuition rates, if they have attended high school in New Jersey for 3 or more years, earned a diploma from a New Jersey high school and have filed an affidavit, or that they have stated or will soon start, to legalize their status.

Karol Ruiz spoke of her reasons for fighting for passage of the bill: “I was undocumented when I was in public school and I had to go through hoops just to get through the county college system and later, to Drew University. It was a path that took 10 years to go through, much longer than my high school classmates who did not have to pay out-of-state rates.” Had she been entitled to the same financial benefits as her classmates, “it would have taken five to 10 years.”

It is estimated that out-of-state students often pay double or triple the rates of in-state students: “a tough barrier for them to overcome,” Ruiz points out.

It was through this experience that Ruiz arrived at Seton Hall Law: “This fight has given me the passion to fight for immigrant rights. I came to law school because I was inspired by Senator Ruiz when we first lobbied for the bill in 2009.”

The bill is slated to pass through the Assembly and it appears Governor Christie has expressed his interest in signing the bill when it reaches his desk.

Ruiz explained the growing momentum for this legislation: "The conversation has shifted because the facts are out there now: students and their parents are taxpayers, this is not a ‘freebie’ for them to get free state aid. They contribute to the economy and should not be discriminated against.”

Momentum, nationwide, is on the students' side. As Ruiz detailed, “Sixteen other states, including states as conservative as Texas, have passed similar bills. They found that after the bill was passed, about .8 to 1% of the population was affected. It’s a minimal population that we are talking about, but with a great return on the other end.”

Watch the broadcast on "Tiempo" regarding tuition equality for undocumented students


Professor Margaret Lewis

Professor Margaret Lewis co-authored an article, “Plenum pledge won’t make scrapping China’s labor camps any easier,” featured in the South China Morning Post.

November 18, 2013

Professor Margaret Lewis co-authored an article, “Plenum pledge won’t make scrapping China’s labor camps any easier,” featured in the South China Morning Post. The article addresses China’s Communist Party’s recent decision to terminate “re-education through labor,” an administrative punishment warranting detention in a labor camp, which can be assigned by law enforcement officials without approval of any court or prosecutor’s office.

Professor Lewis and her co-author, Professor Jerome A. Cohen of NYU Law School discuss their new book, Challenge to China: How Taiwan Abolished Its Version Of Re-Education Through Labor, comparing Taiwan’s process of abolishing their labor camps, as outlined in their book, to the potential challenges that China will face in accomplishing the same. The professors write:

It took Taiwan over two decades to eliminate what it euphemistically called its “technical training institutes” for re-educating ilumang, a term that can be loosely translated as “hooligans” but that had long been used to detain political offenders as well as petty hoods. Spurred by an increasingly well-informed and activist civil society and independent legal profession, Taiwan’s executive, legislative and judicial branches collaborated to restrain police power by improving not only the formal criminal justice system, but also the parallel system of police-dominated administrative punishment that undermined the criminal justice system.

Three interpretations by Taiwan’s formerly docile constitutional court, invalidating various aspects of the administrative punishment system, played a critical role in its demise. Mainland China, however, has no constitutional court and denies its regular courts the power to apply its constitution. Despite China’s constitutional guarantee that the state respects human rights, courts cannot vindicate human rights abuses based on this clear statement.

After providing a detailed analysis of China’s potential obstacles and proposed remedies and reforms, the professors conclude:

Without a clear path for abolishing re-education through labor or a deadline for implementation, we must wait and see how China’s leadership will finally leave it to the history books, as its neighbor across the strait has already done.

Read more about Professor Lewis’s book here.

Watch Professor Lewis’s commentary on the labor camps in a podcast featured by the National Committed on United States-China Relations here. (Professor Lewis’s commentary beginning at (0:13:08)), here.


Professor Lesley Risinger

Professor Lesley Risinger '03 of the Exoneration Project profiled in November issue of NJ Monthly

November 18, 2013

New Jersey Monthly magazine published an article featuring Professor Lesley Risinger ’03, founder of the Last Resort Exoneration Project. Professor Risinger worked on her first exoneration case as a “33-year-old stay at home mother of three, living in Kearny, with no legal training and no more than an amateur interest in the law.”

After collaborating with her mother, attorney Priscilla Read Chenoweth, to successfully exonerate Luis Kevin Rojas, Professor Risinger completed her undergraduate degree and went on to obtain her law degree from Seton Hall Law. Professor Risinger then took on her second exoneration case, resulting in the release of Fernando Bermudez, a man who had served more than 18 years of his sentence for murder. The article describes Mr. Bermudez’s exoneration:

Risinger got the indictment dismissed after eyewitnesses changed their stories and prosecutorial and police misconduct were proven. In the courtroom, Bermudez engulfed Risinger in a bear hug, his face contorted in pain and relief. ‘Lesley is just a remarkable person, a beautiful person inside and out,’ says Bermudez, who now lives in Connecticut with his wife and the two youngest of his three children.

After two successful exonerations, Professor Risinger “began to see this work as her ‘calling,’” inspiring the establishment of the Last Resort Exoneration Project, based at Seton Hall Law and assisted by her husband, Professor Michael Risinger. After two years of reviewing potential cases, the Project identified its first client: Kevin Baker, who has served almost 19 years of a 60 years to life sentence. The article states, “…Risinger believes him to be the victim of a ‘perfect storm of misfeasance’ involving every corner of the criminal justice system.”

NJ Monthly describes how serving as an advocate in an exoneration case requires “the stamina of a long-distance runner” and “the hide of a rhinoceros,”  and comments on Risinger’s persistence, despite several significantly intimidating hurdles that have emerged over the course of Mr. Baker’s case for exoneration:

Risinger pushes on, undaunted. She says she firmly believes in her client’s innocence. That alone, she says, makes every effort worthwhile. Ultimately, she sees herself fighting not just for Baker, but for all of New Jersey’s wrongfully convicted. “Our goal,” she says, “is to put ourselves out of business.”

Read the profile in the NJ Monthly, “Freedom Fighter: A New Jersey Lawyer's Quest for Justice”

Photo courtesy of NJ Monthly

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Professor Jonathan Hafetz

Professor Jonathan Hafetz authored an Op-ed, featured in World Politics Review

November 17, 2013

Professor Jonathan Hafetz authored an Op-ed, featured in World Politics Review, regarding dangers surrounding the U.S. detention center in Guantanamo Bay and the obstacles preventing President Obama’s alleged plan to close the facility.

Professor Hafetz writes about President Obama’s pledge to close Guantanamo, as it “[became] synonymous with human rights abuses and lawlessness.” Professor Hafetz asserts, “Obama has largely succeeded in eliminating Bush-era practices of torture and secret detention, which had been declining anyway as a result of court rulings, internal oppositions and public pressure.” Professor Hafetz goes on, stating that the President’s plan to close Guantanamo “encountered fierce resistance from lawmakers eager to portray the president as sacrificing America’s safety in the name of a misplaced and naïve idealism.”

Hafetz suggests that Obama’s intention to close Guantanamo does not entail ending the underlying system, as he plans to continue trying some terrorism suspects in military tribunals and holding some enemy combatants indefinitely without charge. Rather, Obama plans to reform the war on terror, not necessarily to end it. 

Guantanamo has changed significantly since the wake of 9/11. Hafetz comments regarding this change:

It is no longer a lawless zone. Torture has ended; military commission procedures, though still flawed, have been improved; international legal principles are not employed to justify indefinite detention rather than openly flouted; and the president has abandoned assertions of unilateral executive authority in favor of obtaining legislative support for his actions. Obama, to be sure, still insists that Guantanamo was a mistake—that the harm it has caused to America’s values and reputation outweighs any benefits it has provided to the country’s security. But he has also defended his reformed Guantanamo as lawful.

Despite the improved conditions, Hafetz says, the prisoners’ desperation is increasing: more than 100 detainees participated in a hunger strike earlier this year. With Guantanamo back in the media, Obama took steps to begin transferring detainees. However, this effort was short lived. Hafetz comments, “each failed presidential attempt to tackle Guantanamo reinforces the perception that closure is an unrealistic and insurmountable goal.”

Hafetz explains the costs of maintaining Guantanamo, including serious economic consequences. The facility costs $450 million per year to maintain, which translates to $2.7 million per detainee, compared to $47,000 per prisoner in California’s detention centers. Furthermore, there are moral costs. Hafetz writes, “This continued failure [to close the facility] undermines the U.S. commitment to human rights and suggests the degree to which that commitment may be trumped by political considerations.”

In conclusion, Hafetz summarizes the legacy of Guantanamo:

“Once, Guantanamo was a microcosm of the war on terrorism, the most visible manifestation of a national policy aimed at detaining and interrogating prisoners outside legal protections. Today, Guantanamo appears increasingly like a relic—a legacy from a prior administration for which there are no easy answers.” He further points to Obama’s contribution to perpetuating that legacy:

“In short, while Obama has consistently maintained that Guantanamo undermines America’s values, he has also helped legitimize the prison. Despite his pledge to close Guantanamo, Obama may thus have helped ensure the prison’s future survival.”

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Professor Stephen Lubben

Professor Stephen Lubben published an article in the New York Times’ DealBook, "Adding Up the Risks in Floating Rate Debt"

November 11, 2013

Professor Stephen Lubben recently published an article in the New York Times’ DealBook section on the risks of floating rate debt in light of the Treasury Department’s announcement that it will soon begin selling floating-rate notes, a new type of debt for which interest will increase with market rates.

Professor Lubben explains that buyers will essentially “get the same effect as rolling their money into a short-term Treasury bill over a two-year period, without any transaction costs.” He further explains that “[s]uch an investment would have a real return—the return after inflation—of zero. As a matter of theory, of course.” Professor Lubben points out that the real return could potentially reach the negative range during times of financial crisis.

In describing the final risk, Professor Lubben writes:

But that ignores the biggest risk, which, in theory, should not exist at all: payment risk. A sovereign borrower borrowing in its own currency—in this case, that currency is also the leading reserve currency—should theoretically have no payment risk.

But theory does not account for the risks of irrationality. In particular, the reckless tendencies of Tea Party Republicans, who seem to be willing to do things best done outside the real world. Like landing a 747 on an aircraft carrier. Or defaulting on United States government debt.

Read the full NY Times DealBook article, “Adding Up the risks in Floating Rate Debt,” here.


Professor Mark Alexander

Professor Mark Alexander Op-Ed in The Record Regarding Garden State Plaza Shooting

November 07, 2013

In the wake of a slew of violent gun-related incidents that have alternately shocked, saddened, and shaken communities across the nation in the past several months, and with the latest such incident having taken place in Paramus, New Jersey’s Garden State Plaza Mall on November 4, Constitutional Law Professor Mark Alexander penned an op-ed appearing in The Bergen Record: “[The] Garden State Plaza is another place where we live our daily lives. Now, it’s another place in our daily lives that has been scarred by gun violence . . . It is a plague on society that nobody should tolerate; yet we do,” says Alexander. 

Professor Alexander admonishes legislators and policy makers to change the law to make access to guns more difficult, by any means necessary, saying to the gun lobby, “This is not what the Second Amendment is about . . . unstable people shooting up schools, movie theaters and malls with high-powered weapons of mass destruction.” 

Read the full op-ed in the Bergen Record, "Have we said enough about gun violence?"


Professors Lesley and Michael Risinger

Professors Lesley and Michael Risinger, op-ed in the Star-Ledger regarding Somerset prosecutor’s defense of Gerard Richardson conviction

October 20, 2013

In 1994, authorities discovered the body of a 19-year-old woman who had been murdered and dumped more than 30 miles away from her home. A jury later convicted Gerard Richardson of this homicide. The prosecution’s case was largely based on expert testimony of a forensic dentist, who stated that Richardson’s teeth matched bite marks found on the victim’s body. The DNA sample from the bite marks was recently analyzed, returning results matching an unknown male, but not Richardson. Despite this new discovery, it appears that the prosecutor plans to proceed with the case in order to defend the conviction.

Professor Lesley C. Risinger and Michael D. Risinger, director and associate director of the Last Resort Exoneration Project at Seton Hall Law, authored an op-ed in the Star-Ledger on Richardson’s case, noting prosecutors’ duties in cases like this one. With respect to the case’s progression in light of the new DNA analysis, they write:

One can always construct some hypothesis as an alternate account for any set of facts. The issue is not whether you can frame such a hypothesis, but whether or not it is tenably plausible. The prosecutor’s alternate hypothesis may not be as implausible as alleging intervention by trouble-making Martians to explain the evidence, but it is close.

They conclude by recalling words from the New Jersey Appellate Division:

’If neither law nor logic supports the State’s position, then it may be necessary to concede defendant’s position.’ The prosecutor in the Richardson case should reflect upon his professional responsibilities under clear New Jersey law and withdraw his absurd alternate account for the evidence.

Read the full Op-ed, “A Somerset prosecutor's responsibility to the convicted innocent: Opinion,” here.

Brian Sheppard

Professor Brian Sheppard

Professor Brian Sheppard featured as the legal authority in viral documentary about New Jersey's notorious Action Park

September 18, 2013

Professor Brian Sheppard is featured in a viral new documentary, “The Most Insane Amusement Park Ever,” in which he discusses the laws that regulate amusement parks in New Jersey. The documentary, produced by Mashable and Dailymotion, is about Action Park, an amusement park that was notorious throughout the eighties for its risky rides, lax oversight, and frequent injuries. The movie, which is broken up into two parts, has received over 800,000 total views in just the few weeks that it has been online. It has been profiled by USA Today, Forbes, Slate, Huffington Post, The Star-Ledger, i09, Gothamist, and The Blaze, among others.

Professor Sheppard discusses state restrictions regarding the age of ride operators and the unusual self-insurance scheme that owners of the park devised before lawsuits allegedly forced the Park's closure in 1996. He explains that “[p]art of this story is about inspection and oversight,” and that “you would hope that inspections would happen frequently enough that you would see there could be problems with the equipment or problems with operation.” He further characterizes the Park’s strategy with respect to safety and insurance as an attempt to exist at “the fringes of legality.”

Part I can be viewed here
Part II, which features Professor Sheppard, can be viewed here


Professor Thomas Healy

Professor Thomas Healy’s new book reviewed in The Christian Science Monitor and The Atlantic

August 13, 2013

Professor Thomas Healy’s new book, THE GREAT DISSENT: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America, is receiving stellar reviews from media nationwide. The book details how, in 1919, U.S. Supreme Court Justice Oliver Wendell Holmes shifted his view of individual rights and became a champion of the First Amendment and Americans’ right to free speech. The Christian Science Monitor placed Professor Healy’s book at the top of its Top Ten list for the month of August, writing,

Healy tells the story of the steady process of intellectual and personal evolution that caused Supreme Court Justice Oliver Wendell Holmes to change his mind about the degree of freedom that Americans should be allowed. In the process, Holmes helped to change a nation. Healy's account is a stirring mix of intelligent biography and truly significant social and legal history.

The Atlantic review concluded,

The genius of Justice Holmes' dissent in Abrams wasn't just its eloquence it was ‘meta-ness.’ He was changing his mind about the need, the value, the glory, the benefit, of changing one's mind and of accepting the changing of other people's minds. Healy has written a magnificent book about a magnificent moment in American legal history -- and in the life of a magnificent man who was smart enough to understand just how wrong people can be.

Read the Christian Science Monitor review, “Ten Best Books of August: The Monitor Picks”

Read the Atlantic review, “The Most Powerful Dissent in American History”


Professor Jenny Carroll

Professor Jenny Carroll in the Orlando Sentinel on jury selection in the trial of George Zimmerman

July 17, 2013

Following the acquittal of George Zimmerman in the shooting death of Trayvon Martin, the Orlando Sentinel asked Seton Hall Law Professor Jenny Carroll whether the all-woman jury selected for the trial acted against stereotype.

The paper noted that Professor Carroll,

said it would be wrong to assume every female juror could be stereotyped. One theory might be that women tend to be sympathetic jurors. But that could also mean they would be more sympathetic to self-defense claims, she said. Some experts speculate women can be harder on suspects who use guns, Carroll said, but she also noted some women are pro-gun.

Stereotypes or not, jurors are told to leave emotions out of their decision making. 'These jurors are asked by the judge and asked by the attorneys in their closings to set aside any of those biases and sympathies and think about the facts of the case,' Carroll said.

Read the Orlando Sentinel article, "George Zimmerman Trial Coverage: Did female jury defy stereotypes with Zimmerman verdict?"


Tara Adams Ragone

Lecturer in Law Tara Ragone and Professor Frank Pasquale in NJ Spotlight on strengthening the security of electronic medical records in remote servers

July 10, 2013

While the law has protected the confidentiality patients’ records through the 1996 Health Insurance Portability and Accountability Act (HIPAA), the storage of electronic medical records on remote servers may prove a security risk for patient information. NJ Spotlight interviewed Tara Ragone and Frank Pasquale of the Center for Health & Pharmaceutical Law & Policy on their new white paper, The Future of HIPAA in the Cloud,” which was funded by a grant from Microsoft. The paper details the risks that healthcare providers face in managing digitized records and offers policy recommendations to avert security breaches and hold medical providers accountable for proper record storage.

NJ Spotlight quotes Tara Ragone, a Research Fellow and Lecturer in Law, “When you have the protected health information stored in a central location, hackers will want to go in, (and) will attack the treasure trove…People have to have that information protected and not out into the public.”

The article also notes, “Ragone said legal standards are still evolving to address the wide range of issues posed by the electronic use and storage of health information – including such simple acts as a doctor emailing a patient.”

Read the article, Legal Scholars Cite New Challenges in Struggle to Protect Patient Privacy

Read the press release regarding the white paper, “The Future of HIPAA in the Cloud”


Professor Jonathan Hafetz

Professor Jonathan Hafetz in The Boston Review, writes about two new books on U.S. drone policy

June 21, 2013

Professor Jonathan Hafetz reviewed two works, both authored by investigative reporters, on the use of drones in the United States’ arsenal to fight terrorism: Dirty Wars: The World is a Battlefield by Jeremy Scahill (Nation Books) and The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth by Mark Mazzetti (Penguin Press).

The argument for the use of drones is that the military may strike without committing inordinate numbers of troops. However, the use of drones has gained visibility and amassed controversy since September 2011, when missiles fired from a U.S. Predator drone killed Anwar al-Awlaki, a 30-year-old American citizen who was crossing the desert in Yemen at the time. The Bureau of Investigative Journal, based in London, estimates that 4,000 individuals, soldiers and civilians included, have been killed by drones since the attacks of September 11, 2001.

Professor Hafetz’s conclusion: “Drone strikes and other covert ‘kill or capture’ operations have come to define President Obama’s approach to national security, much as the military detention of terrorism suspects at Guantánamo did his predecessor’s.”

Professor Hafetz uses the reviews to highlight the need for the U.S. government to implement policies in which drones are only one component of what should be a comprehensive, long-term strategic effort to end terrorism.

Read Professor Hafetz’s Boston Review article, “War without Strategy: America Still Doesn’t Have a Plan to Fight Terrorism”


Professor Jordan Paradise

Professor Jordan Paradise in the Star-Ledger and Chemistry World on the Supreme Court case regarding patents on genetic material

June 13, 2013

Professor Jordan Paradise agrees with the Supreme Court ruling in Association of Molecular Pathology vs. Myriad Genetics, in which the Court struck down Myriad Genetics’ attempt to patent mutations in genes used to test whether a patient has a predilection toward breast or cervical cancer. The tests made headlines recently when actress Angelina Jolie, influenced by her own results, underwent a double mastectomy. The question arose as to whether a profit-making company can claim proprietary rights to genes and genetic material. The Star-Ledger and Chemistry World interviewed Professor Paradise just prior to the ruling regarding the nuances of the case and for her perspective.

When asked, “Why is the U.S. Supreme Court examining Myriad Genetics?,” Professor Paradise replied, “The case asks a single question: Are human genetic materials patent-eligible subject matter under U.S. patent law?...It’s an important issue. We’re essentially asking whether you can take something out of nature and say you invented it and that it’s now your property. The implications of these patent claims tie into cost, access and personhood. Myriad said they have transformed the genetic material sufficiently to create something new.”

As for Professor Paradise’s point of view, she said, “I’m on the side of access, not keeping genetic information proprietary. Access would increase robust research by others, increase access to patients, and reduce the costs of diagnostic tests. A diagnostic kit to detect a specific genetic mutation may rise to the level of an invention and acquire patent protection, but the underlying genetic information does not.”

In Chemistry World, a leading UK science magazine, Professor Paradise said, "If you ask the general public whether DNA should be patented, the overwhelming reaction is no, it would be crazy..It is going to force companies to think differently about drafting their patent claims."

The Supreme Court agreed, unanimously, on June 14. 

Read the June 13 Star-Ledger article, Patenting human genes: A Q&A on Myriad Genetics

Read the June 20 interview in Chemistry World, "US Supreme Court rules genes can't be patented"


Professor Jenny Carroll

Professor Jenny Carroll on the proposed NJ State Senate bill allowing policemen to confiscate cell phones at the scene of a collision

June 11, 2013

The Star-Ledger, WHYY-FM radio in Philadelphia, Channel 9 Fox TV News and Channel 11 interviewed Professor Jenny Carroll about the privacy issues arise within the proposed bill under consideration in the New Jersey State Senate which would allow police to confiscate a cell phone at an accident scene.

The State Division of Highway Traffic Safety reports 1,840 handheld cell phone-related crashes in New Jersey in 2011, resulting in 807 injuries and six deaths. While Professor Carroll points out that an officer may have probable cause to review a cell phone that may be at the root of an accident, the action raises questions about the driver's right to privacy. She believes that question may rise to the level of the Supreme Court.

"To the extent that the Legislature may be able to argue that the driver has ceded some of his privacy interests by being in that accident, you can't make that argument for the third party whom the driver was potentially in communication with," she said Tuesday. "And I think that is potentially an issue the Supreme Court is going to have to address as well."  

Read the Star-Ledger article: "License, registration and cell phone: Bill would let N.J. cops search phones after crashes"

Read the transcript of the radio broadcast on WHYY: "Bill allowing police to search cell phones of drivers in a crash raises concerns in N.J."


Professor Jonathan Hafetz

Professor Jonathan Hafetz on Bloomberg TV's "Street Smart" regarding extradition of Edward Snowden

June 10, 2013

As of this writing, Edward Snowden, a former consultant for the National Security Agency, currently remains in Hong Kong, having fled the U.S. after leaking information regarding the NSA’s surveillance practices. Professor Jonathan Hafetz appeared on Bloomberg TV’s “Street Smart” to answer some questions about what is likely to happen next to bring Snowden home to the U.S. “I think the chances are pretty good that he will be extradited or possibly removed under U.S. immigration laws,” he said.

Professor Hafetz noted that the nature of the charges may affect Hong Kong and China’s willingness to comply with U.S. requests for extradition: “It would have to be a crime under Hong Kong law, such as stealing information from the government. If it’s a political offense, such as espionage, there may be a political exception to extradition.” Professor Hafetz and his hosts noted that China would be put in a difficult position if the Chinese or Hong Kong government denied the U.S. requests for extradition – offering Snowden safe harbor for leaking information while the Chinese government is called to task for its own suppression of free speech rights. However, Professor Hafetz concluded that the Chinese or Hong Kong governments have little to gain by refusing a request from the U.S. to deport Snowden. He said, “I don’t think they have a ‘dog in the fight,’ no reason they want to protect him, no need to create international tensions...If they seek to protect Snowden, it will have a many domestic ramifications for China.” 

Watch the interview on Bloomberg TV’s “Street Smart”

Professor Stephen Lubben

Professor Stephen Lubben

Professor Stephen Lubben discusses bankruptcy on "Marketplace"

June 10, 2013

After National Envelope - the largest private envelope maker in the U.S. - filed bankruptcy last week, "Marketplace," the American Public Media radio show broadcast on NPR, asked Professor Stephen Lubben about companies that have forestalled bankruptcy by taking long-term, low-interest loans. "“If they're able to refinance and put off addressing real problems with the business, they may just be putting off their pain to a later date,” Lubben says.

He warns that much of that debt will mature by 2017, and the interest rates may be much higher when the time comes to pay up. "So although we have low bankruptcy rate right now, Lubben says 'We may have to face the music on this.'" 

Read the full article and hear the "Marketplace" segment, "What kinds of businesses go bankrupt these days?"


Professor Barbara Moses

Ronald Morgan '13, Jacqueline Shulman '13, and Professor Barbara Moses publish Op-ed in The New Jersey Law Journal

June 06, 2013

Ronald Morgan '13 and Jacqueline Shulman '13 co-authored an op-ed piece with Professor Barbara Moses as part of their work with her in the Civil Rights and Constitutional Litigation Clinic of the Seton Hall Law Center for Social Justice. The piece, featured in the New Jersey Law Journal, addresses the slippery slope of civilly confining ex-sex offenders after they have completed the time to which they were sentenced.

Morgan, Shulman and Professor Moses write, “Nobody has a soft spot for sex offenders. No lobbyists protect their interests; no community groups fight for their rights. But the SVP [sexually violent predators] laws undermine two principles of the American criminal justice system: that we imprison people because they have broken the law—not because they might break the law in the future—and that once a convict has paid his debt to society, he may rejoin it.”


Professor Lori Nessel

Professor Lori A. Nessel Featured in multiple news outlets and AP video on medical repatriation

May 28, 2013

Professor Lori A. Nessel, Director of the Center for Social Justice, and co-author of a report entitled “Discharge, Deportation, and Dangerous Journeys: A Study on the Practice of Medical Repatriation,” and author of several other scholarly articles on medical repatriation, recently appeared in numerous articles and on television, radio, and web-based programs to discuss her work on medical repatriation.

An expert on immigration law and international human rights, Nessel has worked for years to highlight the unregulated process by which hospitals return sick undocumented immigrants to their countries of origin even when they still need critical medical care. When asked about the practice of medical repatriation, Professor Nessel was quoted in an AP video as follows: “Hospitals are doing de facto deportations and sending these very vulnerable immigrants directly from their hospital beds back to their countries, oftentimes without their consent. . .” In a March 2013 blog post, Professor Nessel highlighted the tragic results that can occur from medical repatriation, as demonstrated by the case of Marlene:

The coerced repatriation and subsequent death of Marlene, a young longtime U.S. resident from Mexico, illustrates the perilous outcomes that all too often occur when hospitals engage in medical repatriation. Marlene was brought to the U.S. when she was one year old, and by the time she was nineteen, she dreamed of becoming a police officer and serving on the SWAT team. But just two months after her high school graduation, a family acquaintance entered her home and shot her in the head.

Marlene was rushed to a public hospital in Arizona. Upon arrival at the hospital, Marlene was admitted and initially “stabilized” by doctors. But after learning that she was undocumented, the hospital began pressuring Marlene’s relatives to agree to repatriation. The hospital’s pressure persisted as the family attempted to find any avenue of assistance. Meanwhile, Marlene developed an intestinal infection, severe fever, and pneumonia, and suffered a heart attack.

The family ultimately succumbed to the hospital’s pressure and agreed to her transfer, but still asked their attorney to investigate any possible relief that might allow Marlene to stay in the U.S. One possibility was a U Visa which, if granted, would have afforded Marlene lawful immigration status in exchange for her willingness to assist in the investigation of the crime. The hospital, however, would not delay Marlene’s transfer, and the doctors at the hospital declared her stable and able to travel. At 9:00 AM on August 10, 2010, Marlene was wheeled out a back entrance of the hospital and taken to Mexico. Upon her arrival, she was diagnosed with septicemia, pneumonia, and meningitis. At 5:05 AM on August 11, 2010, Marlene died.

Nessel, Lori. 2013. “Immigration Reform and Health Care: Leaving the Undocumented in the Breach,” available at ACCESS DENIED: A Conversation on Unauthorized Im/migration and Health.

According to Professor Nessel, governmental regulation is needed in order to remove the “cloak of secrecy” that surrounds this practice: “At the very least, Nessel said, government regulations could require that hospitals obtain knowing consent from patients or the families of patients who are being repatriated. In this case, ‘knowing’ consent would require a full explanation of the consequences of being removed from the country, made in the patient’s native tongue, she said.” Mary Anne Pazanowski, “Medical Repatriations by Hospitals Provide Controversial Remedy for Difficult Discharges,” “Medical Repatriations, ending on May 5, 2013] 22 HLR 667 (May 5, 2013) (reproduced with permission from BNA's Health Law Reporter, copyright 2013 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

For the full AP video, go to:

Washington Post, “Hospitals 'deport' ill, undocumented immigrants.”

For additional written coverage, see:

Columbus Dispatch, “Hospitals send home some ailing immigrants.”

CBS News, Report: “U.S. hospitals deported hundreds of immigrants.”

UPI “U.S. hospitals repatriating sick/injured undocumented immigrants.”

For additional interviews, go to:

HuffPost Live (Video & Live Interview), “Immigration Black Hole.”

Read the Press Release and report, “Discharge, Deportation, and Dangerous Journeys: A Study on the Practice of Medical Repatriation”


Professor Mark Denbeaux

Center for Policy & Research Latest GTMO Report Cited by U.S. Department of Defense, Office of Chief Defense Counsel

May 23, 2013

The most recent report from the Center for Policy & Research, “Spying on Attorneys at GTMO: Guantanamo Bay Military Commissions and the Destruction of the Attorney-Client Relationship,” was heavily cited in a letter memo from the U.S. Department of Defense, Office of Chief Defense Counsel to the U.S. Secretary of Defense, the Honorable Charles Hagel.

The 10 page letter memo, which requests improvements in the conditions of confinement in Guantanamo, devotes 2 pages to the Seton Hall Law report (citing the inconsistencies discovered by Center Fellows in statements made by various members of the military regarding recording capabilities at GTMO and overall recording capability itself).

Read the full letter memo from the Department of Defense, Office of the Chief Defense Counsel, to the U.S. Secretary of Defense.

Read the report, “Spying on Attorneys at GTMO: Guantanamo Bay Military Commissions and the Destruction of the Attorney-Client Relationship.”


Professor Barbara Moses

Professor Barbara Moses Named President of New York County Lawyers' Association

May 22, 2013

Featured in the New York Law Journal, Professor Barbara Moses, Director of Seton Hall Law’s Civil Rights and Constitutional Litigation Clinic, was named President of the New York County Lawyers' Association (NYCLA), one of the largest bar groups in the United States.

The New York Law Journal Reports:

Moses, a securities litigator turned law professor, has already spearheaded efforts that will continue in her two-year term.

"The issue that's most important to me at NYCLA is its inclusivity. I want to nurture and expand that and strengthen that," said Moses, 56, who is counsel to Morvillo Abramowitz Grand Iason & Anello and also directs a constitutional litigation clinic at Seton Hall University School of Law in Newark, N.J.

The 105-year-old organization was founded for lawyers denied admission into other bar groups because of their religion, ethnicity or political affiliation. At more than 9,000 members, NYCLA is now one of the largest bar groups in the United States.

Building on a project started by her predecessor, Stewart Aaron of Arnold & Porter, Moses has reauthorized a task force to analyze how a $170 million cut to the 2011-12 state court budget is affecting lawyers, court employees and defendants, a rising number of whom are pro se.

The task force—chaired by former NYCLA president Michael Miller and former Appellate Division, Second Department, Justice Stephen Crane—will extend its reach to study the effects on the federal courts of the cutbacks brought on by the sequester this year.

"I find that disturbing that folks in Washington allowed that to happen," Moses said. "Our budget-cut task force will be collecting this kind of information to present a fuller picture of what this means for access to justice. These aren't just numbers in somebody's budget."

In addition to showing a "real-world, in-the-trenches" view of an overburdened court system, Moses said she hopes NYCLA's continued research will prompt reforms.

Read the full feature article, “Incoming President Pledges to Nurture NYCLA's 'Inclusive' Role.”

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Professor Paula Franzese

Professor Paula Franzese Featured in the Wall Street Journal on legal education

May 21, 2013

Professor Paula Franzese’s article, “Law Teaching for the Conceptual Age” (forthcoming, Seton Hall Law Review) was featured in the Wall Street Journal’s Law Blog. Professor Franzese, voted Professor of the Year an unprecedented 11 times, espouses a larger and more comprehensive view of the law.

The Wall Street Journal writes:

The notion that law schools should teach more practical skills and hands-on training is in vogue these days.

But Paula A. Franzese, a property and government ethics professor at Seton Hall University School of Law, thinks that the theory v. practice debate needs to be reframed. The more important divide, she says, is between the two sides of the brain.

“Much of what we tend to do in the law school classroom is aimed at honing left-brain thinking,” writes Ms. Franzese in a forthcoming essay in Seton Hall Law Review.

The Journal further notes:

That means before talking about the trees, professors should teach the forest. “What are the threads that tie together this group? What are the essential commonalities and differences?… How is this material a mirror of its times?”

She offers her own property class as a case in point. When she teaches her students about the different rulings on the obligations of landlords, she first asks her students “to consider the common threads that tie those cases together and the shared catalysts that precipitated the courts’ repeated retreat from” precedent.

She concludes:

In these difficult times, as law teachers we are uniquely situated to frame the task of reinvention for both the academy and the profession. Staying relevant against the backdrop of significant demographic, socio-cultural and economic shifts that have altered the ways that the law is perceived, accessed and practiced requires that we re-think and re-brand the theoretical and practical skills’-sets that we teach.

Read the full article, “Are Law Schools Neglecting Half of the Brain?”

Professor Jenny Carroll

Professor Jenny Carroll

Professor Jenny Carroll on ESPN.com regarding gun charges levied against New York Jets running back Mike Goodson.

May 21, 2013

Professor Jenny Carrol was featured in an article on ESPN.com regarding the gun charges filed against New York Jets running back Mike Goodson. According to ESPN,

Goodson was arrested at 3 a.m. Friday during a traffic stop on Route 80 in New Jersey. He was the passenger in a car that was stopped in the left-center lane. Goodson was charged with unlawful possession of a handgun, possession of a loaded handgun, possession of hollow-point ammunition, possession of marijuana and drug paraphernalia.

Both Goodson and the driver, Garant Evans, 31, of Roselle, N.J., were intoxicated, according to police. Goodson required medical attention at a local hospital.

After more than 12 hours in jail, Goodson was released on $50,000 bail.

ESPN further reports:

If Goodson pleads guilty or is convicted of unlawful possession of a handgun, he will be subject to the Graves Act, a New Jersey law that carries a minimum mandatory sentence of three years. There is a chance the charges could be amended.

New Jersey also has some of the strictest sentencing requirements in the nation for possession of hollow point bullets. If convicted of the charge, Goodson could face a five-year mandatory minimum sentence according to Jenny Carroll, an associate professor of law at Seton Hall Law School, where she teaches criminal law. The gun charge could be dropped for either Goodson or Evans if the police determine who it belonged to, but Carroll said both occupants of a vehicle can still be found guilty of charges relating to one gun or hollow point bullets under a clause called constructive possession.

Read the full ESPN.com article, “Mike Goodson meets with Jets”


Professor John Jacobi

Professor John Jacobi In NJ BIZ & NJ Spotlight on New Jersey Health Reform

May 08, 2013

Professor John Jacobi took part in the Council on State Public Affairs' “New Jersey State of Health” symposium, covered by NJ BIZ and NJ Spotlight. The symposium brought together the state’s leading health policy experts to discuss and formulate responses to the challenges wrought by the implementation of the ACA.

NJ Spotlight reports that:

The discussion on the future of long-term future of healthcare followed panel discussions on the implementation of the health benefit exchange and Medicaid eligibility expansion, key features of the 2010 Affordable Care Act that are both scheduled to beginning covering more New Jersey residents on January 1, 2014.

Seton Hall health law professor John V. Jacobi noted the challenge involved in informing uninsured residents about the new options. The exchange will be an online marketplace in which uninsured people can buy coverage and learn whether they are eligible for federal subsidies.

NJ Biz notes that:

Seton Hall Law School Professor John V. Jacobi said that between Medicaid expansion and the subsidized health plans to be sold on the exchange, "there will certainly be hundreds of thousands of people covered," among New Jersey's nearly 1 million uninsured.

"There are several barriers to getting those people covered, and one is the information deficit," Jacobi said. "People who are uninsured are typically very busy people who struggle to make their rent and put food on the table, and they are not engaged in the rollout of the ACA. So getting navigators and health educators and information to those people is going to be very important."

The federal Department of Health and Human Services has allocated $1.5 million to fund navigators in New Jersey, which health care experts have said won't be adequate.

[Assemblyman Herb Conaway Jr. (D-Delran), chair of the Assembly health committee] said outreach to the public will be crucial. The state Department of Banking and Insurance still has an unspent federal grant of nearly $7.6 million it received to help plan a state-run exchange; the state opted instead for HHS to build the exchange for New Jersey. DOBI is talking to HHS about how that money can be used, and Conaway said it's key that navigators get that money.

"It's really going to be those community-based organizations that know how to reach and communicate with (the uninsured) that are going to be so important for reaching the people who need to be in the exchange," he said. "That certainly would be an appropriate use for that money."

Jacobi said the uninsured in New Jersey, "are mostly people associated with the workplace. Most are in families with workers, full-time or part-time workers, and dependents of workers," who either can't afford to buy insurance at their workplace, or their employer doesn't offer it.

Read the NJ BIZ article, “Health panel reveals concerns about Obamacare rollout, future”

Read the NJ Spotlight article, “Healthcare Leaders Envision a Shared Future”


Brian Jacek '13

Brian Jacek ‘13 Featured Op-ed in the L.A. Times on Immigration Reform

April 25, 2013

Brian Jacek ’13 co-authored an Op-ed piece with the director of Human Rights Watch's Refugee Program. The piece, featured in the Los Angeles Times, details the legal plight of refugee asylum seekers in the U.S.— including the prohibition against their employment and a dearth of conversation regarding this important aspect of immigration reform.

Jacek and his co-author, Bill Frelick, write:

The time for immigration reform is undoubtedly ripe, and much of the new proposed legislation and public discourse are focusing on work opportunities. But the plight of asylum-seekers who are prohibited from supporting themselves, so far, is not part of the conversation.

In 1980, Congress amended the Immigration and Nationality Act to bring the United States into conformity with its treaty obligations based on international refugee law. From that time, asylum-seekers were authorized to work if they demonstrated that their asylum claim wasn't frivolous. But in 1996, Congress, concerned about a large backlog of cases and what it perceived as abuse of the asylum system, enacted various measures restricting asylum, among them stricter rules about working.

Congress barred asylum-seekers from working legally for 150 days after filing their applications — plus an additional 30 days to process the application — unless they were granted asylum before that time had passed. The clock that counts those days stops any time the government determines that the applicant delayed the proceedings. But in practice, it is unclear precisely what stops and restarts the clock. The problem has affected almost all asylum-seekers. In 2011, the clock had stopped at some point for 262,025 people — 92% of all pending cases — according to the federal Executive Office of Immigration Review. Once the clock stops, so does the opportunity to apply for work authorization, leaving too many asylum-seekers without any means to sustain themselves for many months or years.

Read the full L.A. Times feature Op-ed, “Immigration reform overlooks asylum-seekers”

Medical Repatriation Report

CSJ Report on Medical Repatriation Featured in Media Across the Country

April 24, 2013

The Center for Social Justice report on medical repatriation was featured everywhere from the Washington Post and the DesMoines Register, Associated Press, UPI Newswire to the Colbert Report, HuffPost Live, AoL Health, Latino Post and Univision’s Noticias. Medical media such as Med News Today and Becker’s Hospital Review as well as the Immigration Law Blog, also covered the story.

In addition, the Associated Press video story, featuring Professor Lori Nessel, was run by television stations across the country. The report, “Discharge, Deportation, and Dangerous Journeys: A Study on the Practice of Medical Repatriation,” was co-authored with New York Lawyers for the Public Interest (NYLPI), and details an alarming number of cases in which U.S. hospitals have forcibly repatriated vulnerable undocumented patients, who are ineligible for public insurance as a result of their immigration status, in an effort to cut costs.

Read the Washington Post story, “US hospitals send hundreds of immigrant patients back to home countries to curb cost of care”

See the Colbert Report piece on Medical Repatriation, “Word of the Day: ‘Medical Leave’” (@ 5:02)

Read the DesMoines Register/AP story , “'Medical repatriation'” practice questioned

Read the Latino Post, “U.S. Hospitals Deporting Unconscious Immigrants: Over 600 in Five Years”

Read the UPI Newswire, “U.S. hospitals repatriating sick/injured undocumented immigrants”

See AoL on Health/AP Video News

See HuffPost Live (Video & Live Interview), “Immigration Black Hole”

Read Huffington Post Latino Voices

Read Becker’s Hospital Review

Read Medical News Today

Univision Noticias

Read the Press Release and report, “Discharge, Deportation, and Dangerous Journeys: A Study on the Practice of Medical Repatriation”

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Professor Stephen Lubben

Professor Stephen Lubben in the Wall St. Journal on Chapter 11 Insider Pay Transparency, and lack thereof

April 24, 2013

Professor Stephen Lubben appeared in the Wall Street Journal in an article regarding insider pay transparency in Chapter 11 proceedings.

The Wall Street Journal article details the growing practice in corporate bankruptcy of keeping secret the filing company’s compensation to insiders— top executives, corporate officers, directors, et al.

The article notes that:

A Wall Street Journal review of 250 Chapter 11 cases over the past five years found that 19 companies tried to keep the details of insider pay secret, and 17 were successful. Most that didn't complete the insider-pay forms did so without seeking court permission.

The Journal also notes that:

Not disclosing insider pay—compensation to corporate officers, directors and their relatives—has worked for other companies in Chapter 11, too, even though it is the third question on the official federal forms that all debtors are legally required to complete as part of the price of getting a fresh start in bankruptcy.

RG Steel, whose collapse last year put thousands out of work, identified its top executives only as "Employee A" through "Employee G" when listing what it paid insiders. New York law firm Dewey & LeBoeuf LLP navigated bankruptcy without identifying the firm's top earners. Media giant Tribune Co. didn't reveal the names of insiders who collected $268 million the same year a leveraged buyout put the company on the path to bankruptcy.

"My concern is that there has been a move away from transparency," said Stephen Lubben, professor at Seton Hall University School of Law. "To get the discharge you get from Chapter 11, part of the deal was that you had to lay your cards on the table."

Read the full Wall Street Journal article, “Transparency Is the Rule in Chapter 11—Except for CEOs.”


Professor Charles Sullivan

Professor Charles Sullivan in Reuters on Wal-mart, Revisited

April 17, 2013

Professor Charles Sullivan appeared in a Reuters newswire article regarding the renewed efforts of original plaintiffs in Dukes v. Wal-mart to gain class certification for an employment discrimination case against Walmart. In 2011 the U.S. Supreme Court ruled that the original case, which included 1.5 million current and former Wal-mart employees, could not go forward as a class action, noting the size of the case, which the Court deemed unwieldy.

Reuters notes that

With the national class action dismantled, the plaintiffs have instead tried to pursue regional class cases in federal courts in California, Tennessee, Texas, Florida and Wisconsin. Because the case in the Northern District of California is a direct spin-off of the Dukes case, it is the furthest along procedurally.

In the California lawsuit, as in the other regional ones, female workers are alleging that Wal-Mart denied them promotions and pay raises.

Reuters also notes that,

Even with a regional class, though, the plaintiffs could face the same problems that the Supreme Court identified in the original proposed class action, according to Charles Sullivan, a law professor at Seton Hall Law School who specializes in employment law.

"They have to find something common to each worker," he said. "What did Wal-Mart do, or this region of Wal-Mart do, that makes each worker have the same problem?"

U.S. District Judge Charles Breyer is expected to hold a hearing on the class certification issue this summer.

Read the full article, “Wal-Mart plaintiffs, in second try, hope to distinguish case”

The case is Betty Dukes v. Wal-Mart Stores Inc., U.S. District Court for the Northern District of California, No. 01cv2252.


Professor Mark Denbeaux

Professor Michael Simkovic

Professor Michael Simkovic

Professor Michael Simkovic in FoxBusiness on employee personal liability for company credit cards in the wake of company bankruptcy.

April 03, 2013

Professor Michael Simkovic appeared in FoxBusiness on the prospect of employee personal liability for company credit cards in the wake of company bankruptcy.

The article notes that:

If you have spent money on a credit card for business expenses, whether you are responsible for it "depends whether the employee signed as a responsible party on the agreement between the employer and the card issuer," says Edward Boltz, president of the National Association of Consumer Bankruptcy Attorneys and partner in the North Carolina-based Law Offices of John T. Orcutt.

The article further notes:

So how do you know if you could be held responsible for your charges? Check the fine print on your application or the agreement that comes with the card, says Rosenbaum.

Which can be easier said than done.

"Agreements are famously difficult to understand, even for people who have training," says Michael Simkovic, associate professor at Seton Hall University School of Law.

But don't rely on what your own company rep tells you, he cautions. "They can sometimes make mistakes."

Read the full FoxBusiness article, “Who Pays Your Expenses if Your Company Goes Bankrupt?”


Center Social Justice

CSJ on Grand Ravine Massacre In the Washington Post, Miami Herald, Anchorage Daily, et al.

March 29, 2013

The Center for Social Justice was featured in an Associated Press story on its work to bring justice to the victims of the Grand Ravine Massacre in Haiti. The article ran in the Washington Post, Huffington Post, Miami Herald, Anchorage Daily, Kansas City Star, and points in between.

The article notes that:

A Haitian attorney wants a human rights commission to hold Haiti's government accountable for failing to provide reparations to the victims of a 2005 massacre at a soccer stadium and related attacks the following summer.

Evel Fanfan and attorneys from the Seton Hall University School of Law Center for Social Justice have filed a petition before the Washington-based Inter-American Commission on Human Rights on the victims' behalf.

In December 2012, the Center for Social Justice, under the direction of Professor Lori A. Nessel, and AUMOHD, a Haitian human rights organization, filed the petition with the Inter-American Commission on Human Rights in an effort to obtain accountability and justice for this community.

The case started when Evel Fanfan, the director of AUMOHD (Association des Universitaires Motivés pour une Haiti de Droits), a human rights organization, became frustrated by the inaction of the Haitian government, and decided to look outside of Haiti’s borders for accountability for the massacre.

He found an ally in the Center for Social Justice. Since then, Seton Hall law students have been a driving force behind this case at every stage. Under the supervision of Professors Lori Nessel and Rachel Lopez, Seton Hall law students have been representing Evel Fanfan in this work, including the filing of the petition before the Inter-American Commission on Human Rights mentioned in the A.P. article, but also interviewing the survivors of the massacre, submitting a request for precautionary measures to protect Evel’s life after he was the target of an assassination attempt, and engaging in broad letter-writing campaigns and public advocacy.

Building upon the law school’s long history of supporting the rule of law in Haiti, students from Seton Hall Law launched a human rights campaign to support the survivors of this Haitian massacre. During their spring break in March 2013, students who were part of the Haiti Rule of Law Program delegation met with residents from Grand Ravine, the neighborhood in Port-au-Prince which was subjected to the 2005 massacre at a soccer match and continued attacks afterwards.

The students were moved by what they had seen in Haiti. After returning home, they sprang into action to raise awareness about the case and collect funds for the victims, many of whom lost a relative and their homes during the attack. The students used victim testimonials that they recorded in Haiti to create a video documentary, raised funds through a bake sale and silent auction, and started a petition to urge the Inter-American Commission on Human Rights to take the case. To kick off the campaign, the law school hosted Evel Fanfan, the director of AUMOHD and co-counsel in the case filed before the Inter-American Commission on Human Rights, who gave a presentation on the case at the law school. The students also launched a website that features the video documentary as well as photography depicting Grand Ravine and its residents.

Visit the Grand Ravine Massacre website which includes links to a petition to sign which urges the Inter-American Commission on Human Rights to take the Grand Ravine Massacre Case (the petition and the website associated with such is an independent endeavor; Seton Hall Law School is not responsible for content therein nor does it necessarily agree with the views expressed).

Read the article, “Haiti Massacre Victims Seek Human Rights Help”

in the:

Associated Press, which was run by the Washington Post, Huffington Post, Miami Herald, Kansas City Star and Anchorage (Alaska) Daily among others

Huffington Post Impact


The New Yorker

Professors Jonathan Hafetz & Mark Denbeaux Featured in The New Yorker on GTMO

March 18, 2013

Professors Jonathan Hafetz and Mark Denbeaux as well as a report from the Center for Policy & Research were featured in The New Yorker magazine in an article profiling the “War on Terror” and Guantanamo Bay in a legal historical context.

The New Yorker article, “The Dark Ages: A Critic at Large,” details the origin of the “War on Terror” and reflects on law and process, due or otherwise, through the ages. Professor Hafetz’s book, "Habeas Corpus After 9/11: Confronting America's New Global Detention System," is cited as is his book co-edited with Professor Denbeaux, “The Guantanamo Lawyers: Inside a Prison, Outside the Law."

In addition, The New Yorker article cites as the seminal Center for Policy & Research “Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data.”

Jill Lepore, author of The New Yorker article, writes:

The spread of such torture around the world is the subject of "Habeas Corpus After 9/11: Confronting America's New Global Detention System," by Jonathan Hafetz, who teaches at Seton Hall, and of "The Guantanamo Effect," which is based on interviews with sixty-two former detainees, conducted by Laurel E. Fletcher, the director of the International Human Rights Law Clinic, at Berkeley, and Eric Stover, the director of Berkeley's Human Rights Center. In Afghanistan alone, procedures authorized in the torture memos were used by the C.I.A. at several sites, including a facility in Kabul known as the Dark Prison (where prisoners were not allowed to see the light) and Bagram Air Base, where, in 2002, two men were tortured to death: both died while chained to the ceiling of their cells. Eliza Griswold, writing in The New Republic, quoted a former interrogator who described Bagram as echoing with "medieval sounds." The medieval dungeon: the scrape of shackles, the screams of agony, the groans of despair.

For a time, Americans interrogating suspected terrorists were not answerable to any rules, except those made, ad hoc, by the Bush Administration. The White House's answer to terrorism, which is an abandonment of the law of war, was the abandonment of the rule of law.

And that:

Meanwhile, reporters, lawyers, and human-rights activists had been investigating the conditions under which the prisoners were being held. "The Guantanamo Lawyers: Inside a Prison, Outside the Law," edited by Mark P. Denbeaux and Jonathan Hafetz, is an anthology of reminiscences by more than a hundred lawyers who defended the detainees. "I would have confessed to anything to get my leg back," a prisoner named Abdul Aziz Naji told his attorney, Ellen Lubell, "but I didn't know what they wanted me to say." Naji lost his leg to a land mine, and his prosthetic was broken by U.S. soldiers at Bagram. At Guantanamo, he was given a replacement that didn't fit; he pulled his stump out of it, to show Lubell, leaving the prosthetic, outfitted with a white sneaker, still shackled to the floor. "I knew I had come to the heart of a new kind of irony," Lubell writes.

Stories began to emerge about the abuse of prisoners. Photographs from Abu Ghraib were broadcast on "60 Minutes II" on April 28, 2004, eight days after oral arguments were heard in the Supreme Court in Rasul v. Bush, a case concerning the jurisdiction of the federal courts over the habeas claims of fourteen Guantanamo prisoners. Opposition grew, especially after the Bush Administration memos were published in "The Torture Papers," edited by Karen J. Greenberg and Joshua L. Dratel, and the chilling story behind them was reported by Jane Mayer in her book "The Dark Side." Doubts were raised about whether many of the men sent to Guantanamo should have been arrested at all. In 2006, a team from Seton Hall School of Law released a study of the five hundred and seventeen prisoners then remaining at Guantanamo; according to Department of Defense data, only five per cent of these men had been captured by U.S. troops; at least forty-seven per cent had been arrested by Pakistani or Northern Alliance forces during the months when the U.S. government was offering bounties.

Read The New Yorker article, “The Dark Ages: A Critic at Large.”

Read The New Yorker (subscription)


Professor John Jacobi

Professor John Jacobi featured in The Record on how the lack of a state-run health insurance exchange under the health reform law is ‘a lost opportunity’ for New Jersey

March 17, 2013

Professor John Jacobi appeared in a feature Op-ed in The Record, describing the veto of New Jersey’s health insurance exchange bill as “a lost opportunity.” Professor Jacobi writes:

MANY STATES are gearing up their health insurance exchanges to accept new enrollees in October. Others, including New Jersey, have refused to do so, leaving the management of these important new institutions to the federal Department of Health and Human Services.

Although he announced in budget address last month that New Jersey would expand its Medicaid program, Governor Christie left unchanged his veto of the state’s exchange law. When he vetoed the Legislature’s bill that would have created a New Jersey exchange, Christie decided to leave the task to the federal government, citing the possible costs the state would incur running the exchange.

The governor was correct that there would have been costs, notwithstanding the offer of extensive federal funding. And the rejoinder of some opponents of the governor’s position — that the costs could be covered by assessments on insurers — is too easy an answer. Insurance assessments, after all, raise the cost of coverage for individuals and businesses.

But the burden of the assessments was worth the cost, and, as I describe below, the risk of pushing the task off to the federal government puts the most vulnerable of New Jersey’s residents at risk.

Read The Record’s article, featured Op-ed, “Health reform: a lost opportunity.”


Professor Jonathan Hafetz

Professor Jonathan Hafetz On the Rachel Maddow Show, and in the Star Ledger and Huffington Post

March 10, 2013

Professor Jonathan Hafetz appeared on the Rachel Maddow Show and in the Star Ledger regarding Guantanamo and the military commission hearings and in the Huffington Post on Drones and legal review.

When asked about the prospects of release from Guantanamo for detainees, Professor Hafetz noted in his interview with Rachel Maddow that:

The only ways to get out of Guantanamo at the moment—there are two ways, to be blunt: you can either die in prison or you can be convicted by a military commission for war crimes and given a sentence which, in many cases (except for the 9/11 perpetrators), might just be the time you served—so you can get sent home.”

In a feature Sunday Q&A with the Editor, the Star Ledger writes:

The Star Ledger spoke recently with Jonathan Hafetz, a Seton Hall Law School professor and author of “Habeas Corpus after 9/11: Confronting America’s New Global Detention System.” An expert on civil rights, national security, and criminal and constitutional law, Hafetz has represented several Guantánamo detainees for access to the U.S. legal system. An edited transcript appears here.

Q. Let’s start big: More than four years ago, candidate Obama promised to close Gitmo. President Obama gave the order. Yet it remains open. What gives?

A. The failure to close Guantánamo is the product of several unfortunate circumstances and decisions. One factor is that President Obama failed to close Guantánamo within the critical first six months to a year of his administration, when there was a momentum and a window to act. For example, President Obama did not take one of the most important steps toward closing Guantánamo, which was bringing at least some prisoners to the United States who had been proven not to be enemy fighters and who the government agreed posed no danger. But at the first sign of political resistance, the administration buckled.

That made it more difficult to resettle other detainees in third countries. The other major mistake was the administration’s reversal of the initial decision of Attorney General (Eric) Holder to try Khalid Sheikh Mohammed and the other 9/11 co-conspirators in federal court in New York. When there was a backlash in New York and in Congress, Holder eventually decided to try Khalid Sheikh Mohammed and his co-conspirators in a military commission at Guantánamo — which has already proved a disaster for due process and the rule of law.

Congress has continued to erect a series of incredibly high hurdles to closing Guantánamo, including barring the transfer of any detainee to the United States for any purpose, including continued detention or trial.

It is unlikely Guantánamo will close anytime soon. Even those cleared for release by the administration — roughly half of the 166 prisoners who remain at Guantánamo — will likely be stuck there in legal limbo.

In the Huffington Post, where Professor Hafetz is a regular featured columnist, Professor Hafetz writes:

Should a federal judge review the government's decision to launch a lethal drone attack against a suspected terrorist? A recently released Justice Department white paper on the targeted killing of a U.S. citizen has prompted calls for judicial intervention. While the instinct is right, any review scheme must strike the correct balance between liberty and security.

See the Rachel Maddow interview here, Rachel Maddow (@ 11:31).

Read the Star Ledger article, “Obama's broken promise: A Q&A on Guantanamo Bay.”

Read the Huffington Post article, “Reviewing Drones.”


Professor John Jacobi

Professor John Jacobi in The Record on ‘How Medicaid expansion will help New Jerseyans’

February 27, 2013

Professor John Jacobi published a feature Op-ed in The Record, New Jersey’s most awarded newspaper, on the impact Governor Chris Christie’s decision to expand Medicaid under the ACA will have.

Professor Jacobi writes:

GOVERNOR CHRISTIE’S decision to expand Medicaid coverage to more residents will improve the health of many low-income New Jerseyans, and save the lives of some. In addition, the expansion dovetails with other reform efforts in the state, furthering implementation of innovative programs for the poor and vulnerable.

The governor’s announcement is great news for low-income individuals. The Rutgers Center for State Health Policy estimates that the expansion will lead to an enrollment increase of about 234,000 in NJ FamilyCare, which combines New Jersey’s Medicaid and Children’s Health Insurance Program.

The expansion addresses gaps in the current Medicaid system, under which many poor people were ineligible even if they had absolutely no income or assets.

The expansion will plug those gaps, allowing people to enroll so long as they are lawful residents with an income of no more than about $15,414 per year, which is about the gross income of a full-time minimum wage worker.

Health insurance coverage is important to personal health, and it is simply not true that all Americans have meaningful access to health care. As the Institute of Medicine of the National Academy of Sciences has found, people who have health insurance — including Medicaid — have better access to a regular source of health care. Those with no coverage, in contrast, are more likely to do without medically necessary care, particularly for chronic conditions, and to not fill prescriptions due to cost.

As a consequence, the uninsured are more likely to be in “fair” or “poor” health — and to die before their time. Medicaid expansion will keep people healthy and even save lives.

Read the full feature in The Record, “How Medicaid expansion will help New Jerseyans”

Seton Hall Law School

Seton Hall Law School

Again Named A “Top-50 ‘Go-To’ Law School”

February 25, 2013

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 2012 juris doctor graduates who took jobs at NLJ 250 firms,” the nation's largest law firms.

With over 10% of Seton Hall Law School’s graduated students going to NLJ 250 firms in 2012, the National Law Journal ranked Seton Hall Law 37th 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 45th in the nation.

Claudette St. Romain, Associate Dean of Academic Affairs, remarked, “It’s clear that even within a challenging legal environment, Seton Hall Law graduates continue to compete and practice at the highest levels of the profession. And as our success has grown— with newly hired students finding fellow alumni fully enmeshed as Associates and Partners at the nation’s largest law firms, we’ve built a network that stands poised now to mentor the next generations of success.”

She further noted, “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.”

See the National Law Journal “Top 50 Go-To Law School” Ranking here.

See the National Law Journal “Associate to Partner” Rankings here.


Professor Stephen Lubben

Professor Stephen Lubben Feature Column in The New York Times on the Bankruptcy Clause

February 25, 2013

Professor Lubben, who writes a regular column for the New York Times’ DealBook section, recently published an article on the Constitution’s Bankruptcy Clause, considering it from a historical perspective in relation to Dodd-Frank’s orderly liquidation authority—and the challenge thereto.

Professor Lubben writes:

The litigation against the Dodd-Frank Act’s orderly liquidation authority continues, with an amended complaint filed last week, adding a few more states to the mix, and the deadlines with regard to the government’s motion to dismiss reset accordingly.

The revised complaint (see below) continues to assert that the authority “constitutes an exercise of Congress’s power under the Bankruptcy Clause.”

The Bankruptcy Clause – Article I, Section 8, Clause 4 of the Constitution – is something of an oddball. After all, Congress was already granted the power to regulate interstate commerce in the clause just before, so why single out bankruptcy for separate treatment? And why lump bankruptcy with nationalization?

To the extent the Bankruptcy Clause is given any thought at all, the modern conception of the clause is to assume it part of a larger Hamiltonian effort to federalize the economy: the Commerce Clause, the Bankruptcy Clause and the Contracts Clause, combined perhaps with the Supremacy Clause and the Necessary and Proper Clause, working together to provide that the most important aspects of commerce are federalized, and kept from piecemeal regulation by the states. Indeed, this conception has probably been the most common understanding for almost a century.

But is orderly liquidation authority even an exercise of Congress’ power under the Bankruptcy Clause?

It’s a little unclear, because Congress did not say what power it was exercising when it enacted Dodd-Frank. Presumably, some parts are enacted under the Commerce Clause, but it is plausible that the authority comes under the Bankruptcy Clause, whether Congress knew it or not. After all, there are reasons to doubt whether Congress can enact debtor-creditor law under any other part of the Constitution.

Read the full NY Times DealBook article, “Liquidation Authority and the Bankruptcy Clause.”

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Professor David Opderbeck

Professor David Opderbeck on the TV show Outlook regarding Cybersecurity and China

February 23, 2013

Professor David Opderbeck appeared on the TV Show Outlook, regarding cybersecurity in the wake of allegations that China has utilized computer hackers against American companies and government agencies.

Outlook, is a news and events talk show on EBRU TV, which boasts a viewership of 11 million worldwide.

Professor Opderbeck, who is Director of the Gibbons Institute of Law, Science & Technology and has worked extensively in the emerging field of Cybersecurity Law, noted for the panel that “we should be worried. And the more important aspect of the threat is the problem of intrusion into what we call ‘critical information infrastructure’ It has been shown, for example, that our power grids can be vulnerable; it has been shown that our water plants can be vulnerable. You wouldn’t think so but all of these things are controlled by various technologies that are vulnerable to cyber-attacks. So it is a real concern and there are some real threats we have to think about.”

See the video of Professor Opderbeck on Outlook


Research Fellow and Lecturer in Law

Research Fellow & Lecturer in Law Tara Ragone in Modern Healthcare on potential impact of U.S. Supreme Court hospital antitrust decision

February 23, 2013

Research Fellow & Lecturer in Law Tara Ragone appeared in Modern Healthcare on the potential impact of a recent U.S. Supreme Court decision which found a hospital not exempt from antitrust scrutiny, despite its claim to be protected from such through “state action immunity doctrine,” which, according to Modern Healthcare, “gives states wide latitude to regulate competition.”

The Court’s decision was unanimous, citing the fact that although the hospital system in question, Phoebe Putney Health System, “operates public hospitals under a $1-a-year lease from the Albany-Dougherty Hospital Authority,” it did not dispute that its latest hospital acquisition would give it “control of 86% of a six county market after the sale.” The Court, according to Modern Healthcare, ruled that Phoebe Putney’s financial relationship with the state was not sufficient to render its state action immunity defense tenable, and that “states must expressly grant antitrust immunity to local entities.”

The Modern Healthcare article notes, however, that the decision may also have impact on Medicaid ACOs under the ACA.

Modern Healthcare writes:

And it also could affect Medicaid ACOs. “The state action doctrine has been expanded, expanded, expanded to essentially immunize them,” [Matthew] Cantor said. “The Supreme Court is going to look a bit wary about stark anti-competitive behavior.”

But Tara Adams Ragone, a research fellow and lecturer at Seton Hall University School of Law who has written about how to structure Medicaid ACOs to avoid antitrust scrutiny, noted that the laws in New Jersey, New York, Oregon and Washington do state that they intend to authorize anti-competitive behavior.

“It doesn't change things from my analysis,” she said about the Phoebe Putney decision. Yet she added that states may have to review statutes that don't contain that explicit language.

The Phoebe Putney decision also doesn't address the second prong of the state action doctrine, which requires states to actively oversee the anti-competitive behavior. “That's where there's a lot of work to be done,” she said.

Ragone and Cantor pointed out that it's still unclear whether the FTC and U.S. Justice Department even intend to challenge ACOs as anti-competitive. A classic antitrust case involves entities colluding to fix prices—but the whole goal of an ACO is to reduce costs.

Read the full Modern Healthcare article, “Phoebe Putney dealt legal blow by Supreme Court.”


Paulette Brown '76

Paulette Brown ‘76 Uncontested Nominee for President of the ABA

February 12, 2013

Paulette Brown ’76, a partner at Edwards Wildman, is the uncontested nominee to head the American Bar Association in 2015. She will be the first woman of color elected President of the ABA and, according to the New Jersey Law Journal, her nomination was met by a standing ovation at the ABA’s mid-year conference in Dallas.

The historic nomination was featured in legal news sources such as the ABA Journal, Law 360 and the New Jersey Law Journal. The ABA Journal reports that Ms. Brown’s

...election is virtually assured. Under ABA rules for selecting its presidents, the Nominating Committee will formally select Brown as president-elect nominee at the 2014 ABA Midyear Meeting in Chicago. Then she will be elected by the House of Delegates at that year's Annual Meeting in Chicago before starting her one-year term as president at the close of the 2015 Annual Meeting in Chicago.

The New Jersey Law Journal reports:

Paulette Brown, a longtime advocate for diversity in the profession, is the uncontested nominee for American Bar Association president in 2015, which would make her the first minority woman to hold the post.

She would also be the first ABA president from New Jersey in more than 50 years.

Brown, 61, a labor and employment partner at Edwards Wildman Palmer in Madison and the firm’s chief diversity officer, was named Feb. 10 to a standing ovation before the Nominating Committee at the ABA’s midyear conference in Dallas.

Assuming Brown remains the lone nominee, she’ll be up for a committee vote at the next midyear conference, scheduled for February 2014. She’ll need a simple majority — 34 of the 67 members’ votes — to be nominated officially as president-elect.

The next step would be approval by the ABA House of Delegates at the annual meeting that August. Her term would begin at the conclusion of the following year’s annual meeting.

“People view this as a very, very positive step,” Brown told the Law Journal last Monday. “At the same time, they recognize that it’s not an end. … We have more work to do” in the diversity realm, she says.

Wayne Positan, New Jersey’s representative in the ABA House of Delegates, who made the nomination, said he had discussed it with Brown as early as 2009. “It’s not because of her color — it’s because she’s qualified,” says Positan, a partner at Lum, Drasco & Positan in Roseland.

Brown has been active in the ABA since the start of her career, beginning with service as New Jersey delegate to the Young Lawyers’ Division in 1976-78. She has been a member of the House of Delegates since 1995, sitting on various committees, and was on the Board of Governors in 2008-10, serving on the Executive Committee and chairing the Program Evaluation & Planning Committee.

Brown served on the Commission on Women in the Profession from 2004 to 2007, co-chaired the Committee on Women of Color and co-authored a report, “Visible Invisibility: Women of Color in Law Firms.”

She also was president of the National Bar Association, the principal nationwide African-American bar group, in 1993-94, and currently is second vice chairman of the N.J. State Bar Association’s Labor and Employment Law Section.

She led a delegation to monitor the first democratic elections in South Africa in 1994.

Brown, a graduate of Howard University in 1973 and Seton Hall University School of Law in 1976, was an in-house lawyer for National Steel Corp. from 1976 to 1978, for Prudential Ins. Co. from 1978 to 1980, and for Buck Consultants Inc. from 1980 to 1984.

In 1984, she founded Brown & Childress in East Orange, which in 1993 merged with another firm to become 13-lawyer Brown, Lofton, Childress & Wolfe — the state’s largest minority firm at the time. Brown was managing partner and remained there until 1999.

Brown was with Duane Morris in Newark from 1999 until 2005, when she joined Edwards & Angell in Short Hills, which after a series of mergers became part of Chicago-based Wildman, Harrold, Allen & Dixon in October 2011.

Brown is chief diversity officer for the firm, which has about 660 lawyers globally. Her practice focuses on employment litigation and defending employers in discrimination actions, including class actions.

Alan Levin, chairman of Edwards Wildman, says the firm is “very excited to have one of our partners … nominated for this position. We think it speaks highly of our firm’s commitment to the ABA.”

He says Brown has been “driving the firm forward in not just paying lip service to diversity” but in helping craft programs and educate administrators on race issues, a role that has required her to travel to each of more than a dozen offices.

Louis Childress Jr., with whom Brown founded Brown & Childress, says Brown was “really a key reason” for the firm’s growth. “Where she is now is probably a logical progression in her legal career,” says Childress, who’s still with the East Orange firm, now Childress & Jackson. “She always yearned and wanted just a little bit more.”

Karol Corbin Walker, a longtime friend and colleague of Brown who became the New Jersey State Bar Association’s first black president of either gender in 2003, calls Brown “immensely qualified.”

“She’s been with the big firms, she’s been with the small firms,” says Walker, a partner at LeClairRyan in Newark who was in attendance at the Nominating Committee meeting in Dallas.

Brown fielded committee questions about what new initiatives she’d seek to launch and her methods for drawing young lawyers to join the association, among other subjects. She now is “meeting with as many people as possible” for input, she says.

One issue of “ongoing importance and concern,” says Brown, is one that was discussed at length throughout the midyear meeting: the possible restructuring of law school programs to include less classroom time and more hands-on, practical work experience.

The ABA is holding public hearings. There is no concrete proposal on the table yet. “I don’t have a firm position because I’m still in the process of gathering information,” says Brown, a council member of the ABA Section of Legal Education and Admissions to the Bar.

Once Brown assumes the presidency, she’ll suspend her practice, but will remain chief diversity officer and will play a marketing role for the firm, maintaining contact with key clients. She says the presidential role is “going to be quite time-consuming,” including extensive travel, speaking engagements and promotion of the association.

Brown would be the ABA’s sixth woman president since its inception in 1878, and the third African-American. The first was Dennis Archer of Michigan, in 2003-04, followed immediately by Robert Grey Jr. of Virginia in 2004-05.

She would be the fourth ABA president hailing from New Jersey.

The first was Newark attorney Cortlandt Parker, in 1883. Parker was Essex County’s prosecutor for a decade and practiced with U.S. Supreme Court Justice Joseph Bradley and U.S. Sen. Frederick Frelinghuysen.

The second was Newark’s Sylvester Smith Jr. in 1962. Smith spearheaded a nationwide ABA initiative to better represent indigent defendants accused of crimes. At the time, two-thirds of the states had no organized public or private public defender programs.

New Jersey’s third ABA president was Arthur Vanderbilt, in 1937. At 49, he was the youngest lawyer ever elected. He became the first chief justice after the state’s adoption of its modern constitution in 1947.

Read the ABA Journal article, “New Jersey Lawyer Expected to Be First Woman of Color to Lead the ABA.”

Read the Law360 article, “NJ Labor Atty Slated As 1st Minority Woman to Head ABA.”

Read the New Jersey Law Journal article, “New Jersey Labor Lawyer to Be First Minority Woman to Head ABA."

Professor Jonathan Hafetz

Professor Jonathan Hafetz

Professor Jonathan Hafetz in Bloomberg News on S.D.N.Y. ruling regarding indefinite military detention

February 06, 2013

Professor Jonathan Hafetz appeared in Bloomberg News on a decision by recently appointed Judge Katherine Forrest of the United States District Court for the Southern District of New York, which, according to Bloomberg News, blocked the executive branch “from enforcing part of the National Defense Authorization Act for 2012, rejecting arguments that she should defer to congressional and executive authority in national security matters. The plaintiffs in the case said the law permits the military to arrest U.S. citizens for exercising their freedom of speech and of the press.”

Bloomberg further notes,

“It’s a bold ruling and a potentially sweeping ruling,” said Jonathan Hafetz, a national security and constitutional law expert who teaches law at Seton Hall University in New Jersey. ‘It’s going to confront significant issues on appeal.”

Hafetz, who has represented accused terrorists held at the U.S. naval base at Guantanamo Bay and elsewhere, is the author of “Habeas Corpus After 9/11: Confronting America’s New Global Detention System.” Hafetz said Forrest’s opinion failed to adequately address earlier rulings on the 2001 law.

Read the Bloomberg News article, “Military Arrest in Doubt as U.S. Fights Rookie Judge.”


Professor Margaret Martin

Assistant Clinical Professor Margaret Martin published a feature Op-ed in The Record regarding the prospect of comprehensive immigration reform in the coming year.

February 03, 2013

Assistant Clinical Professor Margaret Martin published a feature Op-ed in The Record regarding the prospect of comprehensive immigration reform in the coming year.

Professor Martin writes:

WE HAVE always been a nation of immigrants. Today, more than 200 years after our nation’s founding, immigrants represent 13 percent of the U.S. population, down just slightly from a high of 15 percent more than a century ago. According to Pew Hispanic Research, among those 40.4 million immigrants for whom the U.S. is home, 11.1 million are undocumented.

For the first time since the Immigration Reform and Control Act was enacted in 1986 under President Reagan, the federal government is poised to pass comprehensive immigration reform….

And notes that, regarding what are commonly referred to as “DREAMers,” young people who came to this country when they were children,

For those who have worked with some of these young people, the proposal is particularly gratifying. Since last August, nearly half a million of these young people have already come forward to apply for a merely temporary program called Deferred Action for Childhood Arrivals, or DACA, which the Obama administration implemented last summer.

DACA is a welcome policy, as it grants relief from removal for two years and the chance to work during that time. However, it could never be anything but a short-term solution.

At Seton Hall Law School’s Center for Social Justice, we have assisted a number of young DACA applicants eager to receive work authorization and register themselves with the federal government, hopeful even before the election that this temporary status might someday become permanent.

My students have represented DACA applicants who come armed with school diplomas, tax returns, family photographs and many other accoutrements of their lives as Americans, but without any right to be here.

Read the full feature Op-ed, “Immigration moves to the forefront.”


Adam Kirchner '14

Dispatch from GTMO Covering KSM Hearing for The Public Record

January 30, 2013

Adam Kirchner, a Fellow of the Center for Policy and Research, visited the Guantánamo Bay Military Base with official Observer status, as a representative of Seton Hall Law’s Transnational Justice Project and the Center for Policy and Research, to observe military commissions, the tribunals established to try detainees for alleged war crimes. Kirchner’s reports on the KSM, et al. hearings were published in The Public Record.

Read The Public Record reports:

Day 1, “The Khalid Sheikh Mohammed Hearings Resume: But Who Is The Man Behind The Curtain? And ‘Who is Controlling These Proceedings?”

Day 2, Guantanamo Military Commissions: “Only The Judge Is In Control, Except When He Isn’t.”

Edward Hartnett

Professor Edward Hartnett

Professor Edward Hartnett In Bloomberg News and Daily Kos on NLRB Recess Appointments

January 28, 2013

Professor Edward Hartnett appeared in Bloomberg News and the Daily Kos on a recent decision by the U.S. Court of Appeals, Washington, D.C., unanimously ruling that President Obama’s appointments to the National Labor Relations Board were unconstitutional.

Bloomberg writes:

U.S. Court of Appeals in Washington sided last week with Republican lawmakers who claimed the 2012 appointments to the National Labor Relations Board were unconstitutional. The picks, made after Republicans refused to consider Obama’s nominees, were “constitutionally invalid” because the Senate wasn’t in recess at the time, the panel held. The court went further, saying valid appointments could only be made for vacancies that occurred while the Senate was adjourned.

If the Washington court ruling is upheld by the U.S. Supreme Court, then it may mean the Senate has always had the power to block recess appointments, according to Edward Hartnett, a constitutional law professor at Seton Hall University.

“To conclude the D.C. circuit is right you’d have to conclude that presidents dating back to at least James Madison have been wrong,” Hartnett said in a telephone interview. “For a practice that presidents have engaged in since close to founding of our nation, it’s hard to conclude that all acted unconstitutionally.”

Read the Bloomberg News article, “Obama Defeat on NLRB Picks a Rare Loss on Recess Power.”

Read the Daily Kos article, Court ruling threatens not just 200 labor board cases, but recess appointment power.


Professor Solangel Maldonado

Professor Solangel Maldonado Featured in the NY Times on Tribal Rights and Adoption

January 24, 2013

Professor Solangel Maldonado, published a feature Op-ed in the New York Times regarding “Adoptive Parents vs. Tribal Rights” and the matter of identity as an American Indian as it relates to the federal Indian Child Welfare Act.

Entitled, “Deciding Who Is an American Indian,” and noting her exception to the practice in some states of defining qualification under the Indian Child Welfare Act as being contingent upon adherence or a lack thereof of certain “cultural makers,” Professor Maldonado writes:

Does cooking fry bread or participating in stomp dances make you an Indian? The South Carolina Supreme Court seems to think it might. It concluded that the biological family of the baby, Veronica, has “a deeply embedded relationship with the Cherokee Nation,” and noted as evidence of this relationship that the family cooked traditional Indian foods like “Indian cornbread, Indian tacos, wild onions, fry bread, polk salad and deer meat,” participated in stomp dances and had decorative Native American pieces in their home.

In some states, these cultural markers of Indian identity have real consequences for Indian children. The federal Indian Child Welfare Act applies to adoptions of an “Indian child” and explicitly applies to “the biological child of a member of an Indian tribe.” However, a small minority of state courts have held that this law does not apply if the child was not part an “existing Indian family” — for example, where an unmarried non-Indian mother voluntarily relinquished an Indian child for adoption at birth or where the court determined that the Indian parent did not have significant social, cultural or political ties with an Indian community. These courts have reasoned that the Indian Child Welfare Act's purpose of preserving tribal families is not furthered when the child, if raised by her birth parents, would not be raised in a culturally Indian home.

Would a court ask an African-American parent whether he prepared traditional African-American foods or celebrated Kwanzaa?

If this law’s protections are based on tribal sovereignty and the preservation of tribal culture — and not race — then the existing Indian family exception might initially have some appeal. However, the U.S. Supreme Court should applaud the overwhelming majority of states that have rejected the exception for three reasons. First, the exception undermines the law’s explicit purpose of keeping Indian children in Indian communities. Second, by requiring evidence of social, cultural and political ties to the tribe, courts infringe on tribes’ exclusive authority to decide who has satisfied the requirements for tribal membership -- who is an Indian. Third, the exception perpetuates stereotypes about who is authentically Indian. While the South Carolina Supreme Court made note of the foods and artifacts in Indian homes, other courts have asked whether the Indian parent contributed to Indian charities, subscribed to Indian periodicals or participated in Indian religious and cultural events.

Read the full feature NY Times, Op-ed, “Deciding Who Is an American Indian.”

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Professor Stephen Lubben

Professor Stephen Lubben In The New York Times on Preferential Payment and Government Default

January 18, 2013

Professor Stephen Lubben, who writes a regular feature column in The New York Times’ DealBook, most recently wrote on the subject of preferential payment in the context of government defaults. Professor Lubben noted that

If a corporation or an individual pays some creditors, but not others, bankruptcy lawyers call that a voidable preference.The preference allows the creditor to get more than it would in the collective bankruptcy process, so the extra bit can be recovered by the bankruptcy trustee.

Preferences are also at issue in the Argentine debt litigation. The Federal District Court in Manhattan has ruled that Argentina can’t pay cooperative creditors while stiffing the uncooperative ones.

Considered in this broader context, the suggestion that the United States should prefer some creditors over others seems somewhat problematic, to put it politely. But that is precisely what some, particularly House Republicans, have suggested the government should do if the $16.394 trillion debt limit is not raised and the United States runs out of cash to pay its bills.

Read the full DealBook article, “An Argentine Parallel.”


Jenny-Brooke Condon

Professor Jenny-Brooke Condon On U.S. Drone Warfare

January 18, 2013

Professor Jenny-Brooke Condon appeared on EBRU TV, broadcast to 11 million people worldwide, in a feature interview regarding the use of drones by the U.S. for military purposes. Professor Condon noted that the technology has been used to attack and kill well outside of war zones, further citing the use of drones to target and kill at least one American citizen amidst countless others. Professor Condon also noted as problematic the lack of Congressional oversight or judicial review.

See the feature interview on drone warfare on EBRU TV.

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Professor Jenny Carroll

Professor Jenny Carroll On BBC News and Hollywood.com on Lance Armstrong

January 15, 2013

Professor Jenny Carroll was interviewed by BBC News and Hollywood.com regarding Lance Armstrong and the prospect of perjury or obstruction of justice charges in the wake of Armstrong’s interview with Oprah.

Professor Carroll noted for the BBC that from a criminal law perspective any admission Armstrong might have made referenced actions that would now seemingly be covered by the 7 year statute of limitations regarding perjury.

Listen to the BBC News interview here

Read the Hollywood.com story, “Lance Armstrong Confesses to Doping in Oprah Interview — Could He Face a Perjury Charge?”


Professor Michael Risinger and Leslie Risinger

Last Resort Exoneration Project Using expert testimony of famed forensic pathologist Michael Baden, files innocence case, and is featured in the Star Ledger, Asbury Park Press, Courier Post and NJ Politicker

January 10, 2013

The Last Resort Exoneration Project, headed by Leslie ’03 and Professor Michael Risinger, has filed a petition in court seeking to prove the innocence of a man who has spent the last 17 plus years in jail for a murder he did not commit.

Famed forensic pathologist Michael Baden has offered expert testimony in the case for The Last Resort, disputing one of the central premises of the prosecution—that there were two shooters in the double homicide for which Kevin Baker, 41, was convicted.

The Star Ledger writes:

The Risingers said they and volunteers, including Seton Hall students, pored through case files, witness statements, and autopsy and ballistic reports and conducted their own interviews in the Centerville neighborhood of Camden where the murders occurred. They said they became convinced the killings were part of a spree of at least nine killings, most of them aimed at eliminating witnesses to other murders — a bloodbath that created pressure on local officials to find defendants quickly.

The Risingers contend:

“Mr. Baker was the victim of a perfect storm of misfeasance, malfeasance or nonfeasance by every part of the criminal justice system, including the investigating officers, the prosecutors, the defense lawyers, the witnesses, and to some extent, even the courts. There is responsibility enough for some to fall upon virtually everyone who touched this case from the beginning.”

Read the full Star Ledger feature, “Couple fight to prove man is victim of justice system, not a murderer.”

Read the Asbury Park Press article, “Guilty until proven innocent: Last Resort Project works to free wrongly incarcerated,”

and the Courier Post article, entitled “A shot in the dark at freedom?”

Read the NJ Politcker article, “New Jersey Law School Takes on Wrongful Convictions.”


Kate Greenwood

Kate Greenwood In Fortune Magazine on Off-Label Marketing

January 02, 2013

Center for Health & Pharmaceutical Law & Policy Research Fellow & Lecturer in Law, Kate Greenwood, appeared in Fortune Magazine regarding the ban on off-label marketing and promotion of prescription drugs, addressing the issue in terms of efficacy. Fortune further cited to Ms. Greenwood’s recent article on the subject, “The Ban on 'Off-Label' Pharmaceutical Promotion: Constitutionally Permissible Prophylaxis Against False or Misleading Commercial Speech?” Fortune writes:

The ban on off-label marketing makes it easier for regulators to police drug makers' claims, since it forces companies to confine their marketing messages to the language on their products' labels. Lifting the ban would greatly increase the FDA's burden; regulators would have to scan a much wider berth of communications for demonstrably false and misleading claims. Kate Greenwood, a research fellow at Seton Hall's Center for Health and Pharmaceutical Law & Policy, is dubious that such an approach would work. "It's very difficult to police prescription drug promotion for false and misleading claims--companies have trouble policing their own sales representatives," she says.

In a recent paper, Greenwood wrote that the Federal Food, Drug & Cosmetic Act was amended in 1962 to prohibit off-label marketing because "post-market enforcement actions against misleading claims were almost always futile." They often took months or even years to implement. The FDA's Office of Prescription Drug Promotion staffs about 70 officials who are currently charged with reviewing more than 80,000 marketing items a year. It would be impossible for the FDA to monitor the majority of statements made by sales representatives. Many of those messages are conveyed behind closed doors, in conversations with doctors.

Read more in Fortune Magazine, “Big Pharma and unfiltered speech: A dangerous prescription.”


Seton Hall University School of Law

Seton Hall Law Tuition Reduction Initiative Featured in NJ BIZ

January 02, 2013

Seton Hall Law School’s Tuition Reduction Initiative was featured in NJ BIZ. The article notes that

In an effort to reduce the loan burden holding down top-tier potential law students' decisions to attend private schools over more affordable public ones, Seton Hall University has extended its merit-based tuition discount program to its law school for the 2013-14 academic year.

And that

Seton Hall Law School Dean Patrick E. Hobbs said in a statement the university extended its tuition reduction program to the law school because “the legal industry is undergoing substantial change, and for those who choose law, we have a duty to respond in a meaningful way — making legal education more practice-oriented and employment-focused, as well as more affordable.”

NJBIZ reached out to Seton Hall Law alumni to get their reaction to the program, interviewing Jeremy Farrell ’07, an Associate at McElroy, Deutsch, Mulvaney & Carpenter LLP, an NLJ 250 firm, and Sheri Pastor ’88, a Partner at McCarter & English, also an NLJ 250 firm.

NJBIZ reports:

“As the law school market is now facing a national problem with lower enrollment, a lot of schools have decided to reduce their standards to increase their numbers. But through this program, Seton Hall is maintaining its standards while also attracting more candidates," said Jeremy Farrell, an associate of the Morristown office of McElroy, Deutsch, Mulvaney & Carpenter LLP and a member of Seton Hall Law's alumni council. "It's a helpful tool to attract the best talents both in and out of New Jersey, and when those kids graduate, they're going to be well placed as the most competitive job candidates in the state.”

NJBIZ further notes that

…Sheri Pastor, leader of Newark-based McCarter & English's insurance coverage practice group, said Seton Hall Law offering reduced tuition reduction to only its highest-quality applicants is “a positive development not just for the law school, but for the students that graduate three years from now.”

“It can only work in the school's benefit to graduate students that have essentially higher GPAs and skill sets,” Pastor said. “It's a tough market for recent grads, because they're competing with people who have been practicing law and are out of jobs. But if Seton Hall's program works and is coupled with changes in the curriculum to provide more hands-on training, then I would expect it will give graduates a greater ability to attract job offers.”

Read the full article, “Seton Hall extends tuition discount to top-tier law students.”