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Media Archives - 2011   

For media inquiries, contact Janelle Costa, Director of Communications, in the Office of Communications, 973-642-8583.

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Professor Adam Steinman

Professor Adam Steinman

Professor Adam Steinman in The National Law Journal regarding personal jurisdiction over a foreign manufacturer. Learn more >>

December 23, 2011

Professor Adam Steinman appeared in the National Law Journal, offering commentary and analysis on a recent Massachusetts case which, unlike two recent U.S. Supreme Court decisions, found personal jurisdiction over a foreign manufacturer which, through its website, was said to have “purposely availed itself” of the Massachusetts marketplace. The case, LaFond v. Salomon North America Inc., involves what are alleged to be faulty ski bindings which were said to have caused serious and permanent injuries to the plaintiff. The Massachusetts court noted in its opinion that question of whether a Web site gives Massachusetts courts personal jurisdiction over a defendant is one of first impression in the state's courts.

The two recent U.S. Supreme Court decisions which found differently, Goodyear Dunlop Tires Operations S.A. v. Brown and J. McIntyre Machinery Ltd. v. Nicastro, however, were distinguishable from the Massachusetts case, LaFond. The National Law Journal notes:

A trio of law professors with civil procedure expertise who have studied the recent Supreme Court rulings say they aren't clear enough, or related enough, to provide guidance in the Massachusetts case. The professors say the Goodyear case is too different to provide guidance. And they believe the Massachusetts case either doesn't conflict with McIntyre or that McIntyre doesn't provide enough guidance.

Seton Hall University School of Law Professor Adam Steinman said Goodyear was a general jurisdiction case, while McIntyre was a specific jurisdiction case like LaFond.

Although LaFond and McIntyre are ultimately very different, they both involve a foreign manufacturer using a U.S. distributor to access the markets in the U.S. and the individual states, Steinman said. In LaFond, "the foreign manufacturer recognized 56 dealers of its products in Massachusetts and had an expectation of selling its products to customers there, Steinman said.

"I don't think it's at all inconsistent with McIntyre to uphold jurisdiction on these facts," Steinman said.

document Read the full National Law Journal article, Mass. state court says Web site confers personal jurisdiction over French company, here

Professor Jonathan Hafetz

Professor Jonathan Hafetz

Professor Jonathan Hafetz, Habeas Corpus After 9/11 in Law & Politics Book Review

December 15, 2011

Habeas Corpus After 9/11: Confronting America’s New Global Detention System, by Professor Jonathan Hafetz, was featured in Law & Politics Book Review, published by the Law and Courts Section of the American Political Science Association. In the book, Professor Hafetz makes the point that Guantanamo should not be viewed in isolation, but as part of a global system that is designed to operate outside the law— but not, however, outside the reach of the Great Writ.

The Law & Politics Book Review notes

Hafetz’s Habeas Corpus After 9/11 is an impassioned and exhaustive examination of the lack of legal safeguards afforded to detainees at such places as Guantánamo, Bagram, Abu Ghraib, and to those who were the subjects of extraordinary rendition. He argues that the Bush administration sought to establish a global detention system that would be subject to no legal restraints whatsoever and that much of that system remains intact under the Obama administration. Under President Obama some reforms have been made in the treatment of prisoners and the improvement of procedures, but the broad claims of executive detention power remain unchanged. Thus, while Habeas emphasizes the delicate balance between state and federal power in habeas review, After 9/11 examines that same delicate balance in separation of powers.

Hafetz’s study offers a different sort of empirical analysis. Professor Hafetz has litigated some of the habeas corpus detention cases arising out of the war on terror. His knowledge of the evidence and the case law is comprehensive, and his connection of the case law, assertions of presidential power, and conduct of the war on terror to America’s constitutional ideals is thoughtful and well-argued. One of the strengths of this book is that it highlights the intersection of constitutional law and the study of the presidency by illuminating the implications for American democracy of the untrammeled exercise of presidential power during crises.

document Read the full Law and Politics Book Review on Habeas Corpus here

Professor Paula Franzese

Professor Paula Franzese

Professor Paula Franzese Receives the National Council on Governmental Ethics Laws Award

December 13, 2011

Professor Paula Franzese received the prestigious National Council on Governmental Ethics Laws Award. Known as the COGEL Award, it is the highest form of recognition conferred by the organization and “honors the significant, demonstrable and positive contribution to the fields of campaign finance, elections, ethics, freedom of information and lobbying over a significant period of time."

In bestowing the award, COGEL Officer and Deputy Executive Director of the Philadelphia Board of Ethics, Nedda Massar noted that Professor Franzese

…was at the forefront of ethics reform in New Jersey, and was picked by Governor Richard Codey to serve as his Special Ethics Counsel. In that role, she undertook a survey of the diverse ethics practices and policies of the 19 major departments and 36 authorities, boards and commissions of NJ State government. Then she studied ethics laws in other jurisdictions (I believe with help from COGEL members David Freel and John Contino). The result of this work as Special Ethics Counsel is the landmark “Report of Ethics Reform Recommendations for the Executive Branch of New Jersey Government” (issued March 14, 2005). She and her co-author, Justice Daniel O'Hern, promulgated the first ever Uniform Ethics Code for NJ government and advocated for the new independent State Ethics Commission, of which Paula ultimately became Chair.

It is an understatement to say that the recommendations in this Report dramatically changed the ethical landscape of NJ government from negative to positive.

 Open PDF Document Read the full PDF of the Cogel Award speech here

document Learn more about COGEL here

Professor Stephen Lubben

Professor Stephen Lubben

Professor Stephen Lubben in the New York Times

December 09, 2011

Professor Stephen Lubben, who writes a regular column for the New York Times’ DealBook page, most recently offered two articles, “Corporate Bankruptcy Raises a Question of Ethics” and “High Court Spotlight on Right to ‘Credit Bid.’”

In “Corporate Bankruptcy Raises a Question of Ethics” Professor Lubben notes and inquires:

Certainly entering Chapter 11 is not a decision to be taken lightly, and too often bankruptcy professionals have themselves become cold to the real costs that a business bankruptcy case has on those who depend on a company. But is a decision to delay bankruptcy really praiseworthy or a case of avoiding the inevitable?

In “High Court Spotlight on Right to ‘Credit Bid,’” noting that “The Supreme Court’s current case turns on a drafting quirk in the Bankruptcy Code, Professor Lubben writes:

…the Supreme Court has agreed to decide whether a Chapter 11 debtor can avoid a lender’s right to credit bid when doing a sale under a plan, as opposed to the more famous Section 363.

It’s always exciting and a bit worrying when the high court takes a Chapter 11 case. On the one hand, it’s nice to have the potential for finality. On the other, sometimes the court creates more confusion without really providing clarity. Most bankruptcy types are still puzzling over its resolution of the Chrysler case, and whether there is any deeper meaning there.

document Read the full DealBook article, Corporate Bankruptcy Raises a Question of Ethics, here

document Read the full DealBook article, High Court Spotlight on Right to ‘Credit Bid, here

Mark Denbeaux

Professor Mark Denbeaux

Center for Policy & Research, Lehman Brothers Report in the Huffington Post and BusinessWeek

December 08, 2011

The most recent report by the Center for Policy & Research, Lehman Brothers: A License to Fail with Other People’s Money, which examines in-depth the investigation of Lehman Brothers’ business practices undertaken by the U.S. Bankruptcy Court Examiner in the largest bankruptcy ever filed, was featured in the Huffington Post and BusinessWeek.

The Huffington Post feature notes that

In the years leading up to its collapse, Lehman Brothers nearly doubled its risk and took a scattershot approach to valuing its assets, according to an oversight report released Thursday. The investment bank didn't break the law by doing any of this. And there's no reason to think it couldn't happen again somewhere else. The report, issued by the Center for Policy and Research at Seton Hall University Law School, is at once an indictment of Lehman Brothers' business practices in the period immediately preceding the financial crisis and an examination of a system that could find no legal reason to charge Lehman with misconduct, despite the bank's key role in precipitating a global economic meltdown.

The Huffington Post further notes that

"What we have here is a story that's important because no one of the examples leaps out as a great dramatic headline," Mark Denbeaux, a law professor at Seton Hall and the lead author of the report, told The Huffington Post. "The significance is only in the accumulation."

Denbeaux and his co-authors identify two major patterns in Lehman's business conduct -- a steady ratcheting up of risk and a consistent misvaluing of assets on the balance sheet -- that the report says worked together to undermine the security of the bank.

For example, Lehman Brothers nearly doubled its degree of risk between December 2006 and January 2008, from $2.3 billion to $4 billion over a series of incremental increases. The Seton Hall report notes that Lehman took on this additional risk -- a 74 percent rise in the space of 13 months -- even while the market was declining and in violation of its own self-imposed risk limits.

The report also finds that Lehman had no consistent method for determining the value of its assets, which ended up increasing the precariousness of the company's position.

In BusinessWeek, the article notes of the report that Lehman Brothers “failed in 2008 after increasing its investment risks by 74 percent,” and that “Lehman had a ‘license to fail’ that could be repeated by other financial firms because it broke no laws, according to the study, which based its findings on a report by bankruptcy examiner Anton Valukas.”

document Read the full Huffington Post article, Lehman Brothers 'Gut Feeling' Business Practices Accepted As Legal, Report Says, here

document Read the full BusinessWeek article, Lehman 2008 Failure Came After Increasing Risk 74%, Report Says, here

document Read more about the report, Lehman Brothers: A License to Fail with Other People’s Money, here

Linda Fisher

Professor Linda Fisher

Professor Linda Fisher in the Star Ledger on Pivotal Foreclosure Case Before the New Jersey Supreme Court

December 05, 2011

Professor Linda Fisher appeared in the Star Ledger with regard to a pivotal foreclosure case before the New Jersey Supreme Court, U.S. Bank National Association v. Guillaume. Professor Fisher, along with Practitioner in Residence Kyle Rosenkrans and students of Seton Hall Law’s Center for Social Justice, in fact, co-authored an amicus brief in the case with the Center for Responsible Lending, one of the nation’s preeminent consumer rights organizations.

The CSJ brief focuses on the importance of enforcing long-standing state and federal protections for homeowners facing sloppy, conveyor belt-like foreclosures that regularly disregard notice requirements and fraud protections. In Guillaume, the issue involves, particularly, the origin and insufficiency of the mandatory Notice of Intent to Foreclose, and will resolve an Appellate Division split on the matter. Stressing the importance of the case, which has been expedited through the courts, the Star Ledger notes that

Should the court side with the homeowners and determine what remedy must be made, it could affect pending or completed foreclosures and possibly change the process going forward, said Linda Fisher, a Seton Hall Law School professor who works closely with foreclosure cases at the school’s Center for Social Justice. "The most immediate reason it’s such a big deal right now in New Jersey," Fisher said, "is that there are over 100,000 foreclosures either pending or waiting to be filed, and since this Notice of Intent has to be met in every single case, what has to be included in that notice is fundamentally important to the status of foreclosure actions in the state."


 Read more in the Star Ledger, Future of foreclosures in N.J. hinges on state Supreme Court decision, here

document Read the Program Highlight

Professor Kip Cornwell

Professor Kip Cornwell

Professor Kip Cornwell in the Star Ledger on Trial Prospects in Schoolyard Killing Case

December 05, 2011

Professor Kip Cornwell appeared in the Star Ledger offering background analysis and commentary with regard to the upcoming trial of Jose Carranza, charge with “murder, felony murder, attempted murder, robbery, conspiracy to commit robbery and sexual assault, among other offenses.” The Ledger reports that Carranza

“remains the only defendant never to have given a statement to police about his alleged role in the execution-style slayings that shocked a city and drew national attention. Four college-age friends gathered behind Mount Vernon School on Aug. 4, 2007, listening to music and enjoying the summer night together, were robbed, brutalized and shot in the head. Only one survived.”

In all, there are six defendants from the offense, two, not counting Carranza, still await trial.

The Star Ledger notes that

“while Carranza will face a jury knowing the prosecutor’s office has secured murder convictions against two of his co-defendants, Rodolfo Godinez and Alexander Alfaro, at separate trials. A third defendant, Melvin Jovel, now 22, pleaded guilty to being the lone shooter. All three are serving multiple life sentences. Carranza can expect a similar sentence if convicted of murder.”

Considering his prospects at trial, the Ledger notes:

But Carranza’s case could prove the most challenging because prosecutors don’t have that confession, said John Kip Cornwell, professor of law at Seton Hall University.

"The fact that there is no statement from him means that the prosecution’s case is going to be based on statements from other people and whatever their own investigation uncovers," Cornwell said. He added that prosecutors will have the benefit of previous trials to hone this one.

document Read more in the Star Ledger, Newark schoolyard killings: Jury selection begins for latest defendant in 2007 shootings, here

Professor Jonathan Hafetz

Professor Jonathan Hafetz

Professor Jonathan Hafetz in on the New AUMF Bill, “PolitiFact and the Scam of Neutral Expertise”

December 05, 2011

Professor Jonathan Hafetz appeared in a feature written by Glenn Greenwald entitled “PolitiFact and the scam of neutral expertise.” At issue in the article is the new Authorization to Use Military Force bill (AUMF) and its characterization as one which could allow the military detention of American Citizens. A point noted recently by the ACLU, a number of prominent civil libertarian lawyers (including Professor Hafetz last week in Mother Jones Magazine), and Ron Paul. PolitiFact, labeled Ron Paul’s public assessment as “mostly false,” but as Greenwald reports, PolitiFact relied solely upon two conservatives for this assessment.

Greenwald writes:

The fact-checking site PolitiFact serves a valuable purpose when it actually performs its stated function: to “help you find the truth in American politics” by “fact-check[íng] statements” from political and media figures. But it undermines its own credibility when it purports to resolve subjective disputes of political opinion under the guise of objective expertise. That’s precisely what it did yesterday in this incredibly sloppy and often factually false analysis of Ron Paul’s condemnation of the new AUMF and detention authorities embedded in the pending Levin/McCain bill. What matters here more than PolitiFact‘s obvious, specific errors is the reason they were led to such error: namely, reliance on supposedly neutral, ideology-free “experts” who are anything but that.

PolitiFact rated as “mostly false” Paul’s argument that the new explicit standards in Levin/McCain defining the scope of the War on Terror are so vague and broad that they allow virtually anyone to be targeted by the President with force or detention; to support his claim, Paul cited the fact that, under this new language, the President is explicitly authorized to use force not only against members of Al Qaeda and the Taliban (as the original 2001 AUMF provided), but also against anyone who “substantially supports” those groups or “associated forces.” As Paul put it in his supposedly false statement: “It’s (now) anybody associated with (those) organizations, which means almost anybody can be loosely associated — so that makes all Americans vulnerable.”

Greenwald further writes:

And here is what Seton Hall Law Professor and long-time detainee lawyer Jonathan Hafetz told me today in explaining how this expanded interpretation of the AUMF is already giving rise to exactly the dangers about which Paul warned and could be even worse in the future:

As to “associated forces,” among the most outrageous uses thus far has been the Uighurs, whom the government detained for years based on their alleged membership in an (associated) Uighur independence group. Another concern is expanding AUMF-detention authority to new groups operating in other regions besides Afghanistan (e.g., Horn of Africa) on the theory that they are “associated” with AQ. [Levin/McCain] thus helps entrench the notion of a global war on terror.

One though could imagine some very frightening scenarios. Could the military arrest and detain a person arrested at his home in say Cleveland, Ohio, for writing a $20,000 check to a group that supported AQ? Or a doctor in New Jersey who sent medical supplies to an organization in Ethiopia, for example, that provided humanitarian aid to a group in that country that was deemed to be affiliated with AQ? The answer is probably yes, under the most aggressive views of the [the new bill].

document Read the full Salon article, PolitiFact and the Scam of Neutral Expertise, here

Professor Jonathan Hafetz

Professor Jonathan Hafetz

Professor Jenny Carroll
Professor Jenny Carroll

Professors Jonathan Hafetz and Jenny Carroll featured in the Star Ledger for Hamdan Amicus Brief

December 01, 2011

The brief, filed on behalf of the Japanese American Citizens League, Asian American Legal Defense and Education Fund, National Asian Pacific American Bar Association, and the Asian Law Caucus, and was authored by professors Hafetz and Carroll, lawyers from Gibbons P.C., Lawrence S. Lustberg and Jonathan Manes, and Professor David Cole of the Georgetown University Law Center. Seton Hall Law students, members of the Transnational Law Project, assisted on the brief as well, providing research with specific regard to the different periods in history where the United States has withheld certain rights from noncitizens which are afforded to citizens, and how these actions have historically come to be seen as gross miscarriages of justice.

The Ledger writes:

A group of Seton Hall Law School professors and Newark-based attorneys have filed a federal court brief arguing military commissions created to try alleged terrorists are unconstitutional because they discriminate against non-citizens. The commissions, the lawyers argue, are part of the "shameful" history that included the interning of Japanese-Americans during World War II and ultimately threaten the civil liberties of all Americans, citizens and non-citizens alike.

"History, then, shows that unduly harsh laws targeting non-citizens too often lead to the widespread abridgement of rights, including those of citizens,’’ the brief contends.

document Read the full Star Ledger article, Attorneys, Seton Hall professors claim commissions discriminate against non-citizens alleged to be terrorists, here.

document Read more about the Amicus brief here.

Professor Stephen Lubben

Professor Stephen Lubben

Professor Stephen Lubben in the New York Times on the American Airlines Bankruptcy. Learn More >>

November 30, 2011

Professor Stephen Lubben, who writes a regular column for the New York Times’ DealBook, recently weighed in on the implications of, and considerations underlying, the recent filing of American Airlines for Chapter 11 bankruptcy protection. Considering the prospects for the airline industry, Professor Lubben writes

Just as the nation learned in the 1970s that there really was no need for multiple railroads to offer the same basic passenger service to the same basic points across the country, I suspect we are headed for a similar day of reckoning in domestic air travel.

And then, more Chapter 11 cases.

document Read the full DealBook article, American Won’t Be the Last Airline Bankruptcy, here

Professor Jonathan Hafetz

Professor Jonathan Hafetz

Professor Jonathan Hafetz in Mother Jones Magazine on a Bill Before Congress Which Could Authorize the Indefinite Military Detention of American Citizens. Learn More >>

November 30, 2011

Professor Jonathan Hafetz appeared in Mother Jones Magazine commenting on a defense funding bill being debated in Congress which could authorize the indefinite military detention of U.S. citizens. The article, “Gitmo Law Could Someday Apply to American Citizens,” notes that despite the protestations of some members of Congress defending the bill that the Supreme Court has already authorized such detention through its decision in the Hamdi case, the article notes that

That case, however, involved an actual battlefield in an actual war. The current version of the defense funding bill—formally known as the National Defense Authorization Act, or NDAA—goes further. It says the military can detain anyone deemed to be "a part of" or deemed to have "substantially supported" Al Qaeda, the Taliban, or "associated forces." Terror suspects would not have to be on an actual battlefield or fighting in an actual war, as Hamdi was, to be detained by the military. And although Americans, unlike foreigners, are not required to be held in military detention if apprehended on American soil, the NDAA affirms that they can be, based on the 2001 Authorization to Use Military Force (AUMF) against Al Qaeda.

The Mother Jones article notes that “Crucially, the Hamdi case didn't actually settle the issue of whether or not a US citizen apprehended domestically by law enforcement could be put into military detention. It's happened before: Twice, individuals captured in the United States were detained by the military. In both cases, one involving a citizen and the other a legal resident, the detainees were ultimately shunted into the criminal system for fear that the Supreme Court would find military detention unconstitutional.”

Professor Hafetz defended the legal resident, Ali Saleh al-Marri.  

Concerning the relaxed evidentiary standards which are the spawn of military detention, Mother Jones notes

The Gitmo legal record shows "the government needs very little evidence to hold someone indefinitely," says Jonathan Hafetz, an associate professor at the Seton Hall School of Law who represented Marri, the US resident who spent years in military detention before ultimately being convicted of material support for terrorism in the civilian justice system. The cases have turned "judicial review into a virtual rubber stamp where judges can't meaningfully question the truth or accuracy of documents that the government submits."

document Read the full Mother Jones article, Gitmo Law Could Someday Apply to American Citizens, here

Professor Kristin Johnson

Professor Kristin Johnson

Professor Kristin Johnson, Recently Invited to Participate in SEC/CFTC Dodd-Frank Rulemaking, in the Star Ledger on the Impact MF Global’s Collapse Will Have on Market Reform

November 13, 2011

Professor Kristin Johnson, who was recently invited to participate in the Securities Exchange Commission/ Commodity Futures Trading Commission rule-making process regarding Dodd-Frank, appeared in the Star Ledger offering background analysis and commentary regarding the impact the collapse of MF Global will have on market reform.

The article points out the irony that the collapse of MF Global, a failure headed by former New Jersey Governor Jon Corzine, will itself serve to bolster reform efforts that the former governor would, indeed, support: further implementation of Dodd-Frank.

The article notes that

The financial reform law passed last year by Congress was aimed at a preventing a relapse of the crisis that nearly brought the U.S. economy to its knees in 2008. But efforts to implement the law have been stymied in part by congressional Republicans and industry lobbies that view the 848-page law as having gone too far. The law requires various federal regulators to write and pass about 400 rules, according to an analysis by law firm Davis Polk & Wardwell. Of those, only 74 rules have been finalized.

As noted above, Professor Johnson has been tasked in the SEC/CFTC rule-making going forward— and as the article notes, MF Global’s collapse calls into further question the limited breadth of safety net “clearinghouse” methodology and application. A clearing house, the Star Ledger article notes, “acts as a buffer against counterparty risk, guaranteeing transactions between buyers and sellers in the event that one should fail. It does so by requiring trading partners to post margin, monitoring members’ credit risk and establishing a member-funded guarantee that can be tapped in case one member firm defaults and cannot cover its obligations.”

The authors of Dodd-Frank have attempted to address the lack of a clearinghouse in the context of the largely unregulated market in over-the-counter derivatives such as credit default swaps— a $601 trillion matter, the veritable collapse of which was held largely responsible for the recent economic meltdown of overly exposed firms such as American International Group. The Star Ledger notes:

MF Global’s collapse, however, will test the clearinghouse model in other ways.

A debate in the run-up to setting rules for swap clearinghouses was whether its membership should be open only to the largest broker-dealers that currently dominate the swaps market, or if smaller firms such as MF Global should be allowed to participate as well. Firms like MF Global argued that limiting membership would be anticompetitive, but others warned that smaller firms may not be able to absorb the impact of another member’s default and could introduce more risky trades for clearing.

In the end, MF Global won its lobbying effort. On Oct 18, just weeks before the firm collapsed, the CFTC agreed to open up clearing membership to firms with $50 million in net capital, far below the current industry standards. Kristin Johnson, an associate law professor at Seton Hall University, said the failure will force CFTC and others to keep close eye on how the new clearinghouses set themselves up.

"MF Global will encourage regulators to shine a much brighter spotlight on questions of clearinghouse governance," she said.

document Read the full Star Ledger article, MF Global's collapse bolsters Dodd-Frank aims, efforts, here

Professor Stephen Lubben

Professor Stephen Lubben

Professor Stephen Lubben in the China Post on the Prospects for Commodity Account Holders in MF Global Bankruptcy

November 10, 2011

Professor Stephen Lubben offered analysis and commentary for an article in the China Post entitled “Clients of MF Global face shortfall despite protections.”

The article describes the protections in place for brokerage account holders when a brokerage house files for bankruptcy: preference, even against secured creditors. The China Post writes:

The Securities Investor Protection Act, which went into effect in 1970 as a mechanism for liquidating brokerages, puts brokerage customers at the front of the payback line in bankruptcy.

That means brokerage customers' debts should be repaid in full before non-customer creditors, such as a company's lenders or bondholders, receive a dime. In cases where there are shortfalls in customer funds, other creditors may not get paid at all.

But, importantly, MF Global has evidenced a shortfall of about $600 million in customer funds. And although securities account losses in such instances may be insured up to $500,000 per account through The Securities Investor Protection Corp., an insurance vehicle funded by member brokers, commodities accounts are not covered.

Of the roughly 50,000 MF Global accounts, only approximately 400 of them are said to be securities accounts—and thus available for insurance benefits through the SIPC.

The China Post notes that,

Customer recovery “will really rise and fall with the success of the trustee,” said Stephen Lubben, a professor at Seton Hall University School of Law in New Jersey.

And that,

The upshot: while MF Global's securities and commodities account holders will be equally entitled to their share of assets identified by the trustee for customer recovery, only securities customers have insurance, Jarrell said.

“Once the distribution occurs, if a commodity account holder has a loss, that's their loss,” he said.

And such a loss may be unavoidable for MF Global's commodities customers, Lubben said. Without a buyer for the company's brokerage business — and none has emerged — MF Global could have to liquidate.

The trustee then would be unlikely to find much value within the estate to pay back commodities customers, unless he can locate the missing cash, Lubben said.

document Read the full Chine Post article, Clients of MF Global face shortfall despite protections, here

Mark Denbeaux

Professor Mark Denbeaux

Professor Mark Denbeaux on WCBS Radio Regarding Purloined Facebook Identity and the Law

November 07, 2011

Professor Mark Denbeaux was interviewed by WCBS Radio regarding a recent case in which a woman was accused of impersonating her ex-boyfriend for the purpose of surreptitiously opening and populating a Facebook account in his name. The page was said to have been not flattering to its namesake, a police officer.

The woman was charged criminally under a New Jersey identity theft statute, which, according to Professor Denbeaux, seemingly applied in her case. But Professor Denbeaux further noted that the law in question was also seemingly broad enough to include a wide range of behavior, including office pranks.

icon_listen Listen to the WCBS Radio interviews' first part here

icon_listen Listen to the WCBS Radio interviews' second part here

Leslie Risinger

Professor Lesley Risinger

The Last Resort Exoneration Project Featured on Due Process

November 02, 2011

The Last Resort Exoneration Project, the Seton Hall Law initiative devoted to freeing the convicted innocent in New Jersey, was featured on the award winning TV show, Due Process. The show features Lesley and Professor Michael Risinger, Director and Associate Director of The Last Resort, and special guests Barry Scheck of The Innocence Project and Jim McCloskey of the Princeton-based Centurion Ministries.

Due Process takes an in-depth look at The Last Resort and one of the two non-DNA exonerations Lesley Risinger ’03 has successfully brought, focusing on her first case, that of Louis Kevin Rojas, a young man falsely convicted of a murder he did not commit. More recently, Lesley Risinger, along with her husband Professor Michael Risinger, organized and led the team that obtained the exoneration of Fernando Bermudez, who spent 18 years in prison for a murder he did not commit, and was actually declared innocent by New York Supreme Court Justice John Cataldo on November 12, 2009.

video Watch the full YouTube video, Due Process - The Last Resort, here

Michael Simkovic

Professor Michael Simkovic in Bloomberg News on Credit Card Company Antitrust Suit

November 02, 2011

Professor Michael Simkovic appeared in Bloomberg News, having offered both background analysis and commentary on the prospects of a case in which a number of merchants have alleged that Visa and MasterCard and the some of the world’s largest banks, including JPMorgan Chase & Co., Bank of America Corp. and Citigroup Inc, impermissibly colluded in setting prices/fees on credit card transactions. According to Bloomberg, “The fees on credit cards, which average about 2 percent of the purchase price, add up to $40 billion a year for retailers, not including debit cards,” and the plaintiffs estimate that damages will be “tens of billions of dollars.”

A primary defense to the merchants’ charges rests on a lack of privity and thus standing. Bloomberg writes:

Visa, MasterCard and the banks argued in court papers that the cases have to be tossed because the merchants have no standing to bring them: They don’t directly pay the interchange fees -- the merchants’ banks pay them to the cardholders’ banks, which in turn seek payment from the merchants.

“The undisputed evidence shows that plaintiffs do not pay directly the interchange fees they assert were illegally set,” the defendants wrote in court papers.

They cite a 1977 U.S. Supreme Court decision that said indirect buyers can’t claim they were injured by an antitrust violation. Courts have refused to apply the 1977 case when the direct purchaser is a co-conspirator, as the merchants’ banks are, the plaintiffs argue.

Both sides are seeking summary judgment in the case, In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 05-md-1720, U.S. District Court, Eastern District of New York(Brooklyn).

Professor Simkovic noted reason for the defendants to feel sanguine about their position. Bloomberg writes Michael Simkovic, an associate professor at Seton Hall University School of Law in Newark, New Jersey, said the appeals court covering Brooklyn has taken a narrow view of the co- conspirator exception. “The defendants have some pretty strong arguments there and they might be able to win on that basis,” he said. “The merchants are focusing on the cash flow, but contractually that’s not how it works. Contractually, everything goes through the intermediary.”

document Read the full BusinessWeek article, Visa, MasterCard Seek Fee Suit Dismissal Over Payment Issue, here

Shavar Jeffries

Professor Shavar Jeffries

Professor Shavar Jeffries In the New York Times and Wall Street Journal

November 01, 2011

Professor Shavar Jeffries, Member of the Newark Public Schools Board, appeared in the New York Times and The Wall Street Journal regarding the administration of the $100 million matching grant given to the City of Newark by Facebook’s Mark Zuckerberg last year on “The Oprah Winfrey Show.”

In a recent newsletter, Professor Jeffries noted to his constituency that he “continued to fight” for “the same things I've been pushing for the past 12 years as a civil-rights lawyer, Assistant Attorney General, and child advocate.” In addition to emphasizing a “rigorous, college-preparatory curricula with high expectations” and “recruiting, hiring, and retaining world-class education professionals” to do so, Professor Jeffries has long been a proponent of community and parental empowerment as a means of effectuating school transformation. In recent articles in the New York Times and The Wall Street Journal, Professor Jeffries expressed his satisfaction with the manner and direction in which the Zuckerberg monies have been administered.

In reference to the Zuckerberg monies, which are administered through the Foundation for Newark’s Future, and Gregory Taylor, president and chief executive of the organization, Professor Jeffries recently related to reporters that “the Foundation already has made ‘smart investments’” with the grant monies.

In talking about the Foundation’s prospects, a recent $10,000 grant initiative to directly incentivize individual teachers and groups of teachers who come up with innovative classroom programs, as well as prior initiatives which were responsible for “opening new schools, extending school days and recruiting teachers,” The Wall Street Journal reported:

Shavar Jeffries, a Newark School Board member, said the investments have been smart. "I think they're just getting started, from what I've seen," Mr. Jeffries said. "It's very important to facilitate opportunities for teachers to be entrepreneurial and use their professional expertise and judgment to meet the needs of the kids."

In addition, Professor Jeffries told the New York Times that he came away from a recent meeting with Mr. Taylor feeling assured that Mr. Taylor’s goals and priorities for future Foundation investments in Newark schools were “the right ones.”

The New York Times writes:

“I had some concerns in the spring around making sure that we engage our parents and our community in intelligent ways,” said Shavar D. Jeffries, a school board member and lawyer at the Center for Social Justice at Seton Hall University, who spent about an hour recently in Mr. Taylor’s office. “From what he said I think his goals are the right ones. Obviously the proof is in the pudding, so we shall see in the months ahead if the process and investments reflect those priorities.”

document Read the full New York Times article, Putting Zuckerberg’s Millions to Work for Schools, here

document Read the full The Wall Street Journal, Facebook Funds Go to Teachers, here

Professor Johnathan Hafetz

Professor Jonathan Hafetz

Professor Jonathan Hafetz featured in the National Law Journal

November 01, 2011

Professor Jonathan Hafetz wrote a Feature Op-ed for the National Law Journal regarding the sweeping powers under proposed legislation which would expand and even require military trials and detention for persons, even U.S. citizens, determined by the government to be terrorists.

Professor Hafetz writes:

….The NDAA [National Defense Authorization Act] at first blush appears merely to confirm the status quo by authorizing the military confinement of individuals based on their membership in or support for al-Queda, the Taliban or associated forces engaged in hostilities against the United States. Lower courts have acknowledged a similar detention power under existing law in deciding more than 70 Guantánamo Bay, Cuba, habeas corpus cases during the past three years. The NDAA would make this power explicit.

But the NDAA goes well beyond these decisions. The statute currently used to hold terrorism suspects at Guantánamo — the 2001 Authorization for Use of Military Force (AUMF), enacted after 9/11 — targets those persons or groups responsible for the attacks. The NDAA eliminates any reference to the 9/11 attacks, jettisoning an important constraint on executive power and facilitating the war on terrorism's perpetual expansion.

More significantly, the NDAA will almost certainly be read to allow the military to imprison U.S. citizens and legal immigrants arrested in the United States. President George W. Bush provoked heated controversy when he invoked similar powers to declare two individuals, Jose Padilla and Ali al-Marri, "enemy combatants" and detain them without trial, despite no clear language in the AUMF authorizing this kind of domestic military detention. (I represented al-Marri in challenging his military detention.) Each time the U.S. Supreme Court was poised to review the government's dubious assertion of domestic detention authority, the government mooted the cases, transferring both prisoners to the criminal justice system, where they were ultimately convicted on terrorism charges.

The NDAA would alter the calculus, supplying the kind of sweeping powers that Congress properly refused to authorize after 9/11. It would do so, moreover, even though a decade of experience at Guantánamo shows that confinement without charge tarnishes America's reputation and creates a morass of legal and political complications.

 document Read the full National Law Journal article, Don't extend 'war on terrorism', here

Professor Jonathan Hafetz

Professor Jonathan Hafetz

Professor Jonathan Hafetz with Glenn Greenwald on FireDogLake’s Book Salon

October 29, 2011

Professor Jonathan Hafetz appeared on FireDogLake’s book salon, hosting an online discussion with Glenn Greenwald regarding Greenwald’s new book, With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful.

Center for Policy & Research Fellow, Co-Director of the Transnational Justice Project and author of the critically acclaimed Habeas Corpus After 9/11, Professor Hafetz introduces Glenn Greenwald, attorney and regular featured contributor at with the following:

The United States was founded on the principle that no individual is above the law. We are, as John Adams said, “a nation of laws, not men.” But that principle is under assault, as Glenn Greenwald explains in his powerful new book, With Liberty and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful.

The United States has two sets of rules: those that apply to the rich and powerful; and those that apply to everyone else. Greenwald details how the country’s financial and political elites have twisted and manipulated the law to escape responsibility for even the most egregious crimes. The rise of elite immunity over the last four decades, Greenwald explains, has corroded the country’s institutions and legal and political culture. It not only threatens the ideals on which the United States was built, but also produces widespread disaffection among the public, which manifests itself in a variety of ways, including, most recently, in the Occupy Wall Street protests.

Greenwald, one of the nation’s leading liberal commentators, has been covering these issues for years at Unafraid to speak the truth to power, Greenwald has consistently exposed the hypocrisy beneath United States’ commitment to the rule of law, whether he is writing about the “war on terror,” the politicization of Department of Justice, or the Wall Street bailout. With Liberty and Justice for Some weaves these stories together into a powerful indictment of a nation that has lost its way.

The book begins with the origins of elite immunity, which Greenwald traces to early precedents such as Ford’s pardon of Nixon and the Iran-Contra affair under Reagan. Greenwald then describes how elite immunity has spread through the public and private sectors and Republican and Democratic administrations alike. In an illuminating, if troubling, case study….

document Read the full FDL Book Salon discussion on the new book, With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful, here

Professor Andrea McDowell

Professor Andrea McDowell

Professor Andrea McDowell in NJ Biz on Tort Reform Report Funded by the Chamber of Commerce Law Reform Association

October 28, 2011

Professor Andrea McDowell appeared in NJ Biz regarding a report funded by the U.S. Chamber of Commerce’s Institute for Legal Reform. Entitled “Creating Conditions for Economic Growth: The Role of the Legal Environment,” the report purports to gauge the litigation climate and, through “an econometric model,” show economic advances that may be made by states relative to a benchmark and, according to the report: “how liability costs vary by state and how great potential cost savings could be from incremental improvements in the legal environment in individual states.”

Professor McDowell, however, questioned the underlying means of state by state comparison, given the methodology utilized and also noted the extremely low rate in which victims of accidents file claims.

One of the means of data comparison in the study, as well as the savings purported to result from “tort reform” was based, according to the study, on a benchmark derived from “the state with the lowest tort activity.”

The effect of the legal environment is based on an econometric model of the effect of the perception of the legal environment and the amount of tort activity in each state on the cost of commercial liability insurance. The percent impact represents the reduction in cost that could be realized if each state improved the perception and tort activity to match the state perceived to be the most fair and reasonable and the state with the lowest tort activity.

NJ Biz writes,

But Seton Hall University School of Law professor Andrea McDowell said the survey does not adjust for more industrialized states, which are likely to have more accidents than agricultural states.

“My first reaction is that the money that the defendants don’t pay out is money that the victims don’t get — the amount of money, in the end, stays the same,” McDowell said of the report. “The most striking thing about the tort system is that in 95 percent of cases, victims of accidents don’t go to trial or don’t receive any compensation.”

“If there were 10 times as many tort suits, then it could be that it accurately reflects the number of people who were injured by other people’s negligence,” McDowell said.

document Read the full NJ Biz article, Association says tort reform would encourage business growth in N.J., here

Edward Hartnett

Professor Edward Hartnett

Professor Edward Hartnett Featured on NJ Today TV News on Judges’ Pensions and Benefits

October 27, 2011

Professor Edward Hartnett appeared on NJ Today TV News discussing the ramifications of a recent decision by Judge Feinberg to not stay the injunction she issued last month in the challenge to the state law requiring judges to contribute more to their pension and benefit plans. The claim is that to subject a tenured judge to increased contributions for such is to diminish that judge’s salary contrary to the New Jersey Constitution. Opponents of Judge Feingold’s decision assert that “salary” is not “compensation,” and is, in fact and law, something less.

In addition to discussing the most recent decision by Judge Feinberg, which denied a requested stay to the injunction she recently issued against the state— which stopped the collection of additional monies from judges for pension and benefit contributions— Professor Hartnett discussed the appellate process itself for the case as well as the motion to stay and the underlying merits in addition to the prospects for a constitutional amendment. The interview runs from 12:45 on the video.

video Watch the full NJ Today TV video here

Clinical Teaching Fellow Kyle L. Rosenkrans

Practitioner-in-Residence Kyle Rosenkrans

Practitioner-in-Residence Kyle L. Rosenkrans in the New York Times on the Impact of the HUD Decision to Not Renew its Contract with Newark’s Carmel Towers.

October 26, 2011

Practitioner-in-Residence Kyle L. Rosenkrans appeared in the New York Times regarding the impact of the decision by the Department of Housing and Urban Development (HUD) to not renew its contract with a high-rise apartment building in Newark, Carmel Towers. The building, which is twenty-five stories tall and was opened to tenants in 1971, received rent subsidy money from HUD, often totaling upwards of $1000 while residents were liable for payments of up to 30% of their salary.

The building, however, failed two recent government inspections, scoring only 18 points out of a possible 100 in one inspection. According to the New York Times, a spokesperson for HUD stated that “The problems at Carmel Towers have included serious health and safety issues that have not been adequately addressed over time.”

In deciding to not renew its contract at Carmel Towers, HUD has offered vouchers to tenants for new housing, but tenants must find that housing themselves. In addition, some tenants have complained that the cost of moving itself is prohibitive and that because at Carmel Towers HUD paid for utilities, any new residence without that subsidy would be untenable.

Practitioner-in-Residence Rosenkrans, whose work with the clinic has focused largely on the rights of homeowners facing foreclosure and other housing issues along with systemic education reform, has met repeatedly with groups of tenants to advise them of both their rights and options as they attempt to navigate the change in housing situations.

In noting the uncertainty in which the change has left tenants of Carmel Towers, the Times writes:

The uncertainty has given rise to a fair amount of fear-based rumor. Some believe they will be locked out of the building come Nov. 1. Numerous tenants said they had heard that power and water would be shut off.

All untrue, said Kyle L. Rosenkrans, who teaches at the Center for Social Justice at Seton Hall Law School. “They can’t close the building and lock the door on Nov. 1,” Mr. Rosenkrans said. “That would be an illegal lockout.”

document Read the full NY Times article, As Newark High-Rise Loses Aid, Fear Sweeps Through Its Tenants, here

Professor Edward Hartnett

Professor Edward Hartnett in The Star Ledger on the New Jersey Constitutional Issue Over Judicial Pension and Benefit Issues

October 19, 2011

Professor Edward Hartnett appeared in the Star Ledger, having offered background analysis and commentary regarding the New Jersey Constitution and the judicial ruling which disallowed recent pension and benefit reforms levied against state workers to be levied against New Jersey’s judges.

There is a clause in the New Jersey Constitution regarding judicial salary:

The Justices of the Supreme Court and the Judges of the Superior Court shall receive for their services such salaries as may be provided by law, which shall not be diminished during the term of their appointment. They shall not, while in office, engage in the practice of law or other gainful pursuit.

At issue is whether increases in personal contributions to health benefits and pension count as a diminishment of salaries for judges.

Governor Chris Christie maintained that "Salary means salary — not pension, not health benefits, and not other emoluments of office."

The judge in the case, Mercer County Superior Court Judge Linda Feinberg, ruled differently.

Regarding questions of the propriety of a judge ruling on an issue of judicial salary, the Star Ledger noted the potential for conflict, but

"A Seton Hall law professor, Edward A. Hartnett, put it this way: When all judges have a conflict, the accepted practice is that in turn no judges have a conflict. In this case, Hartnett said, the suit might have been heard by judges who had either been appointed after the change in the state law or whose first term had expired since the measure was signed in June. "That might offer another pool of judges who wouldn’t have a claim and therefore wouldn’t be disqualified," he said.

documentRead the full article,Gov. Christie: Judge Feinberg's decision on judges' benefits 'is self-interested and outrageous' here

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Professor Stephen Lubben

Professor Stephen Lubben in The New York Times’ DealBook on the Prospect and Implications of Countrywide Financial Declaring Bankruptcy for its Various Constituencies

October 04, 2011

Professor Stephen Lubben published his thoughts on the prospect and implications of Countrywide Financial declaring bankruptcy in his column in the New York Times’ DealBook, and what such action might mean for Countrywide bondholders and tort claim holders.

Professor Lubben notes that

Over the past weeks, it has become quite common to speculate that Bank of America might solve its “Countrywide problem” by putting the mortgage unit into bankruptcy to escape some liabilities and litigation losses. Bloomberg News has reported on the idea, and so has Dealbook’s Deal Professor.

And discusses the interweaving of Countrywide and Bank of America:

During the height of the financial crisis, the Bank of America Corporation, the financial holding company that is at the top of the BofA pyramid, guaranteed more than $16 billion of Countrywide debt. The 8-K filing announcing the move is set forth below.

This means that a Countrywide bankruptcy would only address its total debt picture if it also involved a bankruptcy of the bank’s holding company. That appears quite unlikely and it would be quite messy, since the holding company is no doubt a “credit support provider” on countless derivatives on the Merrill Lynch side of the company — maybe on the bank side as well.

document Read more of Professor Lubben’s Column, How Bondholders Would Fare in a Countrywide Bankruptcy, in The New York Times’ DealBook, here

Linda Fisher

Professor Linda Fisher

Professor Linda Fisher in the Star Ledger on The Report to Judiciary from the New Jersey Supreme Court’s Committee on Minority Concerns

September 25, 2011

Professor Linda Fisher was featured in an article in The Star Ledger regarding the recently issued Report to the Judiciary from the New Jersey Supreme Court’s Committee on Minority Concerns. Professor Fisher sits on a subcommittee of the panel which conducts the study and produces the report every two years. Professor Fisher’s panel is largely concerned with juvenile minority access to justice, a primary concern of the report itself.

The Star Ledger reports:

New Jersey courts have made great strides in eliminating racial bias in recent years, but more guidance is still needed to help minorities navigate the complex legal system, a report to the judiciary says.

The Star Ledger, interviewing Professor Fisher, observed

"‘We have a long ways to go, but any progress is an improvement,’ said Linda Fisher, a professor at Seton Hall University Law School who sits on a subcommittee of the panel on minority access to justice. ‘Given this recession is a particularly bad one, the numbers seem worse than ever.’

The report noted minority youths were detained nearly twice as long as whites before their cases were heard, according to information compiled for 2008, the latest year it was available. For minorities, the average stay was 33.5 days, compared with 18.2 days for white suspects.

Those figures showed an increase from 2006, when minorities were held for an average of 21.8 days, compared with 16.6 days for whites.

Fisher said the disparity was cause for concern because the longer juveniles are detained, the less access they have to support systems and the more likely it is they will not succeed in society.”

The Star Ledger also noted that

“Black youths who account for 16.1 percent of the juvenile population composed 63.6 percent of those being detained.

The report says judges should seek alternatives to detention for juveniles. Fisher said she suspected the youths often found themselves entangled in the legal system because of a lack of money, education and access to attorneys.”

document Read the full Star Ledger article, Report finds N.J. courts need to improve juvenile system, reduce detention wait time for minorities, here


Professor Rachel Godsil

Professor Rachel Godsil interviewed on WNET TV’s NJ Today on the make-up of the new New Jersey Supreme Court

September 20, 2011

Professor Rachel Godsil appeared on the WNET TV news program, NJ Today to discuss the make-up of the new New Jersey Supreme Court. The Court, at present, consists of 5 women and two men—the female majority being a first for New Jersey.

But although numerically dominated by women, the Court at present lacks racial minority representation. Professor Godsil discussed the potential impact that such a lack of representation might have and noted that the lack of minorities on the Court was “a concern” as it is important for us, as a society, to “see ourselves” on the Court, and also noted that the lack could also impact upon the Court in other substantive ways as well. Professor Godsil:

….Though of course a Justice’s role is to interpret the law and in most cases the statutes or the Constitution will be fairly clear, there are some instances where there’s a more open-ended provision— such as the Equal Protection Clause— and it’s actually been shown that having minorities, and sort of a diverse bench, forces us all to think—and particularly the Justice’s to think— about what stereotypes might be perpetuated by an Opinion or the ways in which people might experience the world differently.

video Watch the full NJ Today TV interview here (Professor Godsil’s segment begins at 15:12)

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Professor Jonathan Hafetz

Professor Jonathan Hafetz Featured in The Record

September 11, 2011

Professor Jonathan Hafetz was featured in The Record in a special commemorative section on the anniversary of 9/11. Professor Hafetz was asked to discuss the ways in which our justice system has been altered since the tragedy of 2001.

Professor Hafetz writes:

The new regime of military detention often reveals an animus towards those typically suspected of terrorism activity: Muslims and individuals of Arab or Middle Eastern descent. For those “others,” we are willing to suspend the presumption of innocence and the requirement that the state prove a person guilty before imprisoning him.

It is telling that none of the major supporters of the post-Sept. 11 regime of military detention is contemplating denying criminal trials to members of homegrown, right-wing terrorist groups.

The notion that terrorist suspects do not deserve trials suffers from another, more basic flaw. Trials are not simply about the rights of a defendant, they reflect the values of the society that administers them.

The United States’ failure to provide terrorism suspects criminal trials suggests a lack of commitment to its own constitutional principles and to the rule of law.

document Read The Record full feature, How our system of justice has been altered, here

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David B. Robbins

David B. Robbins ‘95 Appointed Managing Director of the FCC

September 08, 2011

David B. Robbins ’95 was appointed Managing Director of the Federal Communications Commission (FCC). The FCC's Office of the Managing Director is responsible for the administration and management of the Commission. David Robbins joins the FCC from the U.S. Small Business Administration where he served as Associate Administrator for the Office of Management & Administration. He began his public service career at the Federal Trade Commission (FTC), where he served as an assistant director, attorney, and senior program manager in the FTC's Bureau of Consumer Protection.

document Read the full AOL article, FCC Names SBA Administrator Robbins As Managing Director, here

Linda Fisher

Professor Linda Fisher

Professor Linda Fisher in the Star Ledger on the Impact of Hurricane Irene on Foreclosure Properties

September 08, 2011

Professor Linda Fisher, a noted expert on foreclosure and its impact on communities, appeared in The Star Ledger in an article which dealt with the aftermath of Hurricane Irene as it relates to foreclosed/bank-owned properties. The Ledger writes:

Once a house has gone through foreclosure — and is therefore likely unoccupied — who watches out for it during storms like Hurricane Irene?

Even before the properties suffered storm damage, the bank-owned houses already had a negative reputation that they are not properly maintained. Linda Fisher, a law professor at Seton Hall, studies low-income neighborhoods where this “foreclosure contagion” effect is particularly common.

“Given that owners of vacant properties tend not to maintain them well, particularly in declining markets, further property deterioration as a result of a natural disaster is going to exacerbate the problem,” Fisher said.

document Read the full Star Ledger article, Even empty N.J. homes need repair post-Hurricane Irene, here

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Professor Stephen Lubben

Professor Stephen Lubben In The New York Times DealBook

September 08, 2011

In his most recent column in The New York Times’ DealBook, Professor Stephen Lubben discusses the potential implications wrought by a holder of credit default swaps which has asked the International Swaps and Derivatives Association’s to rule that a particular entity has experienced a bankruptcy event for credit-default swap triggering event purposes despite the fact that there has been no bankruptcy hearing or similar proceeding.

Professor Lubben writes:

In short, Aurelius Capital wants to say there has been a bankruptcy credit event, without any actual bankruptcy or similar proceeding.

This could have major implications for the broader market for credit-default swaps. Among other things, it would seem that if this interpretation is adopted, any company with negative shareholder equity on its books has also triggered the credit-default swap contracts that reference it.

document Read the full New York Times DealBook article, When a Bankruptcy ‘Event’ Doesn’t Mean Bankruptcy, here


Professor John Kip Cornwell

Professor John Kip Cornwell in Reuters on the Impact of the Recent NJ Supreme Court Decision Ordering Sweeping Changes in Criminal Case Eyewitness Identification Procedure

September 07, 2011

Professor John Kip Cornwell in Reuters on the Impact of the Recent NJ Supreme Court Decision Ordering Sweeping Changes in Criminal Case Eyewitness Identification Procedure

Professor John Kip Cornwell offered background analysis and a quote for a Reuters News article regarding the impact of the recent New Jersey Supreme Court decision which, according to Reuters

calls on New Jersey courts to take measures to address doubts surrounding the reliability of witnesses who identify criminal defendants, highlighting a growing awareness of flaws with relying on memory.

The decision could provide a roadmap for other states wrestling with the same issues, including concerns that misidentification of defendants can sometimes cause wrongful convictions.

Though it has no binding influence outside of New Jersey, other state courts could take the opinion into consideration, said Kip Cornwell, a law professor at Seton Hall University in Newark.

"Because this is a thorough well-regarded opinion, I strongly suspect that this will be scrutinized by other states going forward," Cornwell said.

document Read the full Reuters article, NJ decision on witness identification could have broad impact, here

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Professor Stephen Lubben

Professor Stephen Lubben in the NY Times on the Bailout of Greece

August 25, 2011

Professor Stephen Lubben’s most recent column in the New York Times’ DealBook considers the putative bailout of Greece by the European Union and likens the position of Finland, which seeks to have Greece escrow collateral to guarantee the Finnish position in such a bailout, to that of a holdout creditor in the corporate bankruptcy context. Professor Lubben writes:

The problem, of course, is that the Finns are trying to make the bailout a low-risk proposition, and if Greece were a low-risk proposition it would not need a bailout in the first place.

And if Finland gets collateral, why not everyone else too? That, of course, is impossible and leaves Greece in a position where default becomes preferable, even desirable, since it at least leaves Greece in possession of its cash.

Essentially the Finns are a holdout creditor. In the corporate context you solve this problem by filing for bankruptcy and imposing majority rule. The European Union has no such ability to compel dissenting members, and thus we are no nearer a solution to Greece and its collateral effects than we were when this all began a few years ago.

document Read the full New York Times article, A Bailout Like No Other, here


Professor Jenny Carroll

Professor Jenny Carroll on WCBS Radio Regarding a High School Student Charged Criminally for a School Fight

August 18, 2011

Professor Jenny Carroll appeared on WCBS News Radio, offering analysis and commentary with regard to the recent case of an 18 year-old high school student who was charged criminally for fighting with another high school student in the cafeteria of the school. The other student, a minor, suffered six stitches as a result of the fight. Initially charged as aggravated assault, the charge was reduced to simple assault and the judge in the case decided against harsher sanctions, levying only a $250 fine against the student so charged.

Professor Carroll noted that the choice to not subject the student to either community service or probation “may, in part, reflect this recognition that this is a lot of ado about a relatively minor incident.” But also noted that the decision to prosecute the student in the first place may well be indicative of a larger trend within the law representative of “a real shift in thinking, away from seeing a high school student as someone who needs to be reformed or rehabilitated” and instead as someone who needs to be punished.

Listen to the WCBS features: icon_listen Part 1 icon_listen Part 2 icon_listen Part 3

Margaret K. Lewis

Professor Margaret K. Lewis

Professor Margaret K. Lewis on Voice of America Radio, Chinese, regarding the criminal offense of inciting subversion of state power in China

July 19, 2011

Professor Margaret K. Lewis, who recently appeared before The Congressional-Executive Commission on China in a roundtable discussion on the “Current Conditions for Human Rights Defenders and Lawyers in China, and Implications for U.S. Policy,” appeared on Voice of America Radio, Chinese.

Professor Lewis was interviewed for the VOA show, “Legal Times,” regarding the criminal offense of inciting subversion of state power. The law in question—Article 105, Paragraph 2, 1997 Criminal Code of the People's Republic of China—has been used often to imprison human rights campaigners within China and has been widely criticized in the international community. Most famously, Nobel Peace Prize recipient Liu Xiaobo is currently serving an eleven-year prison term after being convicted of the offense.

In 1997, the United Nations “Working Group on Arbitrary Detention” characterized the law as follows

45. Article 105 is yet another example of a broad and imprecise definition liable to be both misapplied and misused. The article defines the offence it covers as “organizing, scheming and acting to subvert the political power of the State and overthrow the socialist system” and “incitement to subvert the political power of the State and overthrow the socialist system by means of spreading rumours, slander or other means”. The concept of “other means” is open to very broad interpretation.

46. Under Article 105, even communication of thoughts and ideas or, for that matter, opinions, without intent to commit any violent or criminal act, may be regarded as subversion. Ordinarily, an act of subversion requires more than mere communication of thoughts and ideas.

Professor Lewis noted in her interview that it is not unusual for countries to place limits on freedom of speech when that speech directly threatens public safety. The issue is how narrow those limits are, both in the law itself and as implemented. For example, based on public reports about Liu Xiaobo’s case, he would not have been convicted under the restrictive test set forth by the U.S. Supreme Court in Brandenburg v. Ohio.

icon_listenListen to Voice of America, Legal Times (all in Chinese) here and here


Professor Mark Alexander

Professor Mark Alexander On Morning Air Regarding the Politics of the Debt Ceiling Crisis

July 19, 2011

Professor Mark Alexander, a former Senior Advisor to Barack Obama and Policy Director for the successful Obama presidential campaign, was interviewed on the nationally syndicated radio show, Morning Air. The show, part of a listener supported Catholic broadcast network headquartered in Wisconsin, was dedicated to the political aspects of the debt ceiling crisis and discussed the seeming intransigence of those charged with negotiating resolution, and calling upon Professor Alexander for the inside view.

icon_listen Listen to the Morning Air interview (Professor Alexander at 39:20) here


Professor Jenny Carroll

Professor Jenny Carroll Featured in The Record on Caylee’s Law

July 18, 2011

Professor Jenny Carroll wrote a feature Op-ed in The Record on Caylee’s Law and the potential for unintended consequences of legislation based upon hurried emotional responses. Drawing on previous experience with similar legislation, she writes

But the law won’t bring the child back. And the passage of a law in the name of the child we mourn may well create unintended harms without protecting future children.

Caylee Anthony is not the first child we, as a nation, have collectively mourned or sought to memorialize or posthumously protect with legislation. One need only to look to the laws passed in the Nineties in the wake of the horrific murders of Megan Kanka of Hamilton Township, N.J., or Polly Klaas of California.

These laws followed the best intentions – they were designed, in theory, to protect future Pollys and Megans. But these laws, no matter how well-intended, had bad consequences.

document Read The Record article, Now there's Caylee: Laws of good intentions, here

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Professor Jonathan Hafetz

Professor Jonathan Hafetz in New Jersey Monthly Magazine on Individual Liberty in Relationship to Security

July 06, 2011

Professor Jonathan Hafetz appeared in New Jersey Monthly in an article dedicated to the consideration of individual liberties amidst security concerns, especially as it relates to domestic perpetrators and suspected perpetrators of terrorism. Professor Hafetz, who recently authored the book Habeas Corpus After 9/11: Confronting America’s New Global Detention System, has defended a number of Guantanamo detainees and now represents Amir Meshal, an American Muslim from Tinton Falls, New Jersey who moved to Somalia and was later caught up in “a sweep” by U.S. officials. In the article, Mr. Meshal is compared to Sharif Mobley, another New Jersey native who is, at present, being held in custody in Yemen. New Jersey Monthly writes:

[attorney Cori] Crider believes that Mobley was picked up by the Yemenis at the behest of American intelligence agencies, held illegally and interrogated repeatedly without any evidence that he was actually involved in terrorism. She describes this as “proxy detention” and says it has become a troubling American policy.

Another New Jersey resident may have been caught in the same system. Amir Meshal, a Muslim from Tinton Falls, now 28, had moved to Somalia in 2006 and was picked up there in a sweep of foreign terror suspects.

Jonathan Hafetz, an associate professor of law at Seton Hall, who is representing Meshal, says his client was sent to a secret prison in Ethiopia where he was interrogated by American law enforcement agents. Meshal was released in 2007 without being charged with any crime. He returned to New Jersey and is now suing the FBI agents who interrogated him.

For Hafetz, these detentions are troubling signs that our attempts to fight terrorism may be putting cherished liberties at risk. “There are so many instances of policies where we’ve sacrificed individual liberties in ways that erode our values without enhancing our security,” he says.


Professor Margaret Lewis

Professor Margaret K. Lewis in The Epoch Times Regarding her Presentation before The Congressional-Executive Commission on China

July 05, 2011

Professor Margaret K. Lewis appeared before The Congressional-Executive Commission on China in a roundtable discussion on the “Current Conditions for Human Rights Defenders and Lawyers in China, and Implications for U.S. Policy.” The roundtable was hosted by Senator Sherrod Brown (D- Ohio), Cochairman, and examined “one of the harshest crackdowns in years against human rights lawyers, civic activists, and other advocates.”

Professor Lewis, who is a Public Intellectuals Program Fellow with the National Committee on U.S.-China Relations and travels frequently to Asia, focuses her research on the intersection of Chinese legal studies with criminal procedure, criminal law, and international law. Given her expertise, she was called upon by The Congressional-Executive Commission to “place the recent crackdowns in the broader context of what this means for overall legal reform and rule of law developments in China— specifically with regard to criminal justice reform.”

An article in The Epoch Times, in which Professor Lewis is pictured, covered the Roundtable generally and made particular reference to the impact the crackdown has had on the level of discourse in China. Professor Lewis noted for the Commission, “When I was in China last month, I was struck by a decrease in the level of candid conversations at various meetings on legal reforms as compared with even last year.”

document Read the full The Epoch Times article, China ‘Disappeared' Lawyers and Rights Defenders Turning Silent, here

document Read more about The Congressional-Executive Commission on China and see video of the Roundtable here

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Professor Stephen Lubben in Businessweek on Financing for the Los Angeles Dodgers, in bankruptcy

June 28, 2011

Professor Stephen Lubben appeared in Businessweek in regard to the finance arrangement between the Los Angeles Dodgers, in bankruptcy, and JPMorgan Chase & Co.’s Highbridge Capital Management LLC. Under the terms of the arrangement, the Dodgers agreed to pay a minimum of 10 percent interest on a loan amount of $150,000,000, plus fees.

According to Businessweek, “Dodgers assistant treasurer Jeffrey Ingram said in a court filing that the team had ‘no adequate alternative,’ as only Highbridge ‘was willing to provide a commitment for financing of a sufficient amount and within the debtors’ time constraints.’”

Businessweek further noted that

Highbridge may be charging a higher interest rate because of “the special nature of a sports team,” said Stephen Lubben, a bankruptcy professor at Seton Hall University School of Law in Newark, New Jersey.

“The assets are not worth as much to a lender, because the league can veto sales,” he said.

document Read the full BusinessWeek article, JPMorgan Unit to Get 10 Percent Interest on Dodgers Loan, here


Professor Adam Steinman

Professor Adam Steinman in The Record on Why the Wal-Mart Decision was Wrong – and why it Matters

June 28, 2011

Professor Adam Steinman, who co-authored a brief filed on behalf of 31 law professors in the Wal-Mart v. Dukes case before the U.S. Supreme Court, wrote a feature Op-ed piece for The Record.

Entitled, “The court was wrong in Wal-Mart, and here’s why it matters,” Professor Steinman discusses the key interpretive mistakes of the Court and the importance of class actions in general. He writes:

When it comes to consumer protection, civil rights, health and safety, the environment, financial regulations — just to name a few — class actions are crucial for making sure that laws on the books are more than words on a page.

Without class actions, misconduct in these and other areas may never be remedied. And without the possibility of a class action, those who might otherwise be deterred from violating the law may calculate that they are unlikely to be held accountable.

document Read the full The Record article, Opinion: The court was wrong in Wal-Mart, and here’s why it matters, here

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Professor Stephen Lubben

Professor Stephen Lubben in The Wall Street Journal, Which Pointed Readers to his Debate with Andrew Ross Sorkin in the New York Times’ DealBook on the possibility of a divorce settlement “redo” given a Bernard Madoff Investment.

June 13, 2011

The Wall Street Journal’s Daily Docket alerted readers to a debate Professor Lubben was having with Andrew Ross Sorkin, Editor of the DealBook, regarding the legal propriety of a possible divorce settlement “redo” given that the original settlement included the disposition of an investment with Bernie Madoff. Professor Lubben writes a regular column for the Times’ DealBook, but this debate took place within the comments section of a Sorkin article.

document Read the New York Times Dealbook article, Why Maddoff Victim May Have a Case in a Divorce Do-Over, here

Seton Hall law professor Stephen Lubben and Andrew Ross Sorkin debate the merits of a divorce settlement redo involving a Paul Weiss lawyer who invested with Bernard Madoff in the comments section (h/t Credit Slips) of this DealBook post.

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Professor Stephen Lubben

Professor Stephen Lubben in the New York Times on the Prospect of Insolvency for a Vietnamese Shipbuilder , and What That May or May Not Mean for Creditors

June 13, 2011

In his most recent column in the New York Times’ DealBook, Professor Stephen Lubben discusses the vagaries of bankruptcy law as a remedy in the less developed world— in the case of a seemingly state owned Shipbuilder-cum-tourism concern/securities trader in Viet Nam.

Professor Lubben writes

Vinashin, as it is commonly known, is a state-owned and heavily indebted company. Apparently, management decided that shipbuilding was a boring, old-school enterprise and expanded into tourism and securities trading. The tourism-securities-shipbuilding synergies were about as robust as you might expect.

The failure of Vinashin to comport with accepted standards with regard to their indebtedness and default is such that, Professor Lubben writes,

But remember, this is a state-owned company in Vietnam. The lenders seem to have assumed a state guarantee, but thus far Vietnam says no way. This suggests the lenders underpriced the debt by a substantial degree.

So instead we have an offer to the local bondholders to cut down their principal by 90 percent. The company also reportedly says it will not make any payments to creditors until 2015. And Vinashin refuses to share any financial information with the creditors.

Now in a developed country, this sort of managerial cheekiness would likely be met with an involuntary bankruptcy petition and a motion to appoint a trustee to oust the company’s management.

documentRead the New York Times Dealbook Article, In Vietnam a State Company Plays Loose with Lenders, here

Brian Sheppard

Professor Brian Sheppard

Professor Brian Sheppard

June 08, 2011

Professor Brian Sheppard along with law professors from Harvard University and Florida State University appeared in a feature Op-ed in The Los Angeles Times. Professor Sheppard assembled an international team of legal experts and Seton Hall Law students to assess the constitutional validity of the 2009 ouster of then President of Honduras Manuel Zelaya and to offer recommendations for avoiding such crises in the future.

The professors write in their L.A. Times Op-ed:

“Is Honduras ready for a return to the community of nations? It has been almost two years since the forced removal of then-President Manuel Zelaya at the hands of the Honduran military. On June 1, the Organization of American States said yes, when it lifted the suspension of Honduras from the organization by a vote of 32 countries in favor and one against. Still, the question on everyone's mind remains: Was there a coup d'état in 2009? Perhaps the better question to ask is: How can similar instability be avoided in the future in Honduras and elsewhere in the region?” (Read the full Op-ed here).

Compared with the tumultuous changes in government we have witnessed in Tunisia and Egypt in January and February, the sudden early-morning removal of the sitting president in Honduras in 2009 was met with minimal fanfare or apprehension beyond Honduran borders. Yet the implications have been far-reaching for the Honduran government and its leadership, as well as the Honduran people.

With five months left in his term and a new presidential election underway, President Manuel Zelaya was said to have begun exploring polling the Honduran citizenry with regard to an extended term in office. A Constitutional provision, however, limits presidential terms to four years. The Constitution also contains a provision which strips the president of all powers should he attempt to extend his stay in office. What triggers the stripping of power, or who decides if it is triggered, is, however, not satisfactorily answered by the legal texts.

At any rate, the Supreme Court ordered Zelaya’s arrest. The military subsequently apprehended Zelaya, but instead of jailing him, they expatriated him to Costa Rica. The subsequent presidential election was conducted as scheduled, and President Porfirio Lobo Sosa now enters his second year in office. The U.N., however, does not yet recognize the current Honduran government.

In early 2010, Honduras, eager to gain legitimacy in the eyes of the world, formed a Truth and Reconciliation Commission at the recommendation of the United Nations and the Organization of American States.

At the time of the ouster, Professor Brian Sheppard was attending Harvard as a Climenko Fellow and working towards his Doctor of Juridical Science degree. In Spring 2010, he was alerted to the formation of the Commission and their need for a team to assess the validity of the sudden leadership change and the pertinent provisions of the Honduran constitution. “My scholarship focuses on the theoretical and conceptual analysis of changes in legal systems,” Professor Sheppard explained. “The situation in Honduras was intriguing and compelling to me because there are serious implications when law and realpolitik converge and clash. In this instance, constitutional interpretation has had major repercussions for the people of Honduras.”

Professor Sheppard gathered a team of Harvard constitutional law experts: Professor Noah Feldman, who served as senior constitutional advisor to the Coalition Provisional Authority in Iraq and subsequently advised members of the Iraqi Governing Council on the drafting of the interim constitution; and Professor David Landau, who specializes in comparative constitutional jurisprudence with a particular expertise in Latin America. Their proposal was selected in early January of 2011 and within a matter of days, members of the Truth Commission requested that the team fly to Honduras to begin the discovery process.

Braving a snowstorm, Professor Sheppard flew to Honduras so that he could conduct interviews on schedule. “I spent the last days of winter break interviewing members of the Supreme Court, the Attorney General, local constitutional law experts, representatives of key military officers and representatives of the resistance who advocated for Zelaya. As we had expected, the key players in the event used sophisticated legal reasoning in defense of their conduct.”

Professor Sheppard contacted the faculty advisor of Seton Hall Law’s chapter of the Latin American Law Students Association to recruit students who were fluent in Spanish to assist him in conducting the extensive document review. Santos Flores ’13, Cristal Reyes ’11, Paulisa Vargas ’13, and Rookmin Beepat ‘13 stepped forward and are now integral members of the team.

Flores noted, "It was an honor to contribute to this report to the Honduras Truth and Reconciliation Commission— and I’m proud to have played a role in the Commission's mission to analyze and bring closure to this important chapter in Honduran history. Recognition by the nations of the world has huge socio-economic repercussions for the people of Honduras, and this report can ultimately help to strengthen Honduran democracy.

Cristal Reyes agreed, “I felt privileged to help piece together the story behind the changes the Honduran government underwent in 2009. And I was thrilled to contribute to an analysis that will lead to a determination on the legitimacy of the Honduran government and its place within the UN. I also have great hope that this report facilitates not only transparency regarding the events surrounding the ouster of former President Zelaya, but future governmental transitions for Honduras as well.”

The final report was presented to the Truth and Reconciliation Commission in March, and the Commission will be issuing its complete analysis in June. “The most gratifying part of our work is that the report is both retrospective and prospective. We need to understand what happened in the context of constitutional application. But we also are charged with making recommendations that would improve the constitution so that these sorts of lapses and misunderstandings cannot happen again.”

document Read the full Los Angeles Times Op-ed, Fixing Honduras, here

document Read the full Harvard Law School News, Feldman, Landau and Sheppard recommend constitutional reforms for Honduras, here


Professor Mark Alexander

Professor Mark Alexander in The Star Ledger on the Appropriate Scope of Judicial Power

June 01, 2011

Professor Mark Alexander appeared in The Star Ledger on the appropriate scope of judicial power within the context of a recent New Jersey Supreme Court decision in the latest version of Abbott v. Burke. The Court, in its decision, ordered the state to further fund its poorest school districts another $500 million. The Star Ledger notes that

In one of the more controversial cases in the history of school financing in New Jersey, two justices said in a dissenting opinion that the state’s highest court does not have the right to tell the state to come up with an additional $500 million for the poorest school districts.

But legal experts said in interviews that the court was well within its authority to tackle the school funding issue.

Professor Alexander is quoted:

"What the court is doing is enforcing a constitutional right to a thorough and efficient education. It is a responsibility of the court to enforce and protect the rights of the individual. This is what courts do. They’re supposed to stand up for the rights of the individual."

The Ledger also notes that

As currently configured, four Democrats currently sit on the seven-member court. By next March, Christie will most likely have named three new members, including two nominees to fill the seats of Long, who reaches the mandatory retirement age of 70 in March, and former Justice John Wallace Jr., whom the governor declined to reappoint last year.

In addition, Rivera-Soto, a Republican, has announced he is not seeking reappointment when his term ends in September.

Alexander said this will test whether Christie will honor the court’s long tradition of appointing justices who are of the same party as the departing justices. If he doesn’t stick with that tradition, Christie could tip the balance in favor of Republicans.

"He has the opportunity now to put forward nominations for people he thinks will interpret the law and the constitution in a way he thinks is appropriate," Alexander said. "That’s his right. You win, you get the powers."

document Read the full Star Ledger article, Two N.J. Supreme Court Justices Felt Court Had no Place in Deciding Fate of Abbott Case, here

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Professor Bernard Freamon

Professor Bernard Freamon in Diversity Magazine on the Conference on Religion, Human Trafficking and Modern Slavery

June 01, 2011

Professor Bernard Freamon, a noted expert in Islamic Law and Slavery, appeared as a featured presenter at the University of Denver’s Conference on Religion, Human Trafficking and Modern Slavery, and in an article in Diversity Magazine entitled, “Scholars Grapple With Globalization’s Dark Side – Human Trafficking.”

The conference, which brought together noted scholars from throughout the world, focused on practical solutions geared toward ending the lucrative traffic in human beings. An estimated 27 million people worldwide are, at present, enslaved.

Professor Freamon was among one of the conference speakers that noted that “although Islamic law rejects slavery and that the Koran supports the emancipation of slaves, the laws and religious teachings are often ignored.” Diversity further notes that

“Media, education and popular consensus might pave the way for local imams to directly confront the slavery issue,” said Bernard Freamon, professor of law at Seton Hall Law School and director of the Zanzibar Intersession Program on Modern Day Slavery and Human Trafficking.

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Professor Jonathan Hafetz

Professor Jonathan Hafetz in The Christian Science Monitor on the Legality of the Killing of Osama bin Laden

May 23, 2011

Professor Jonathan Hafetz offered analysis and commentary for an article in The Christian Monitor which asked whether the killing of Osama bin Laden could be, within context, considered legal.

The article noted that the head of al Qaeda had declared war on the United States and was a combatant against us. Professor Hafetz noted

“Even if Osama bin Laden was outside [a zone of] armed conflict, did not have a continuous combat function, and was not subject to targeted killing [under the law of war], the killing could be a justified use of lethal force under various possible scenarios, as many police shootings of criminal suspects are.”

document Read the full Christian Science Monitor article, Was it legal for the US commandos to kill Osama bin Laden?, here

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Professor Stephen Lubben

Professor Stephen Lubben in Bloomberg News on the $318.4 Million Madoff Estate Lawyers and Advisers have Received Through March

May 19, 2011

Professor Stephen Lubben offered comment for an article in Bloomberg News discussing the $318.4 million Madoff Estate lawyers and advisers have received through March. Irving Picard was appointed trustee of the estate by the Securities Investor Protection Corp., a securities industry funded organization designed to protect brokerage customers, days after the Madoff irregularities came to light. According to Bloomberg,

Picard, the trustee liquidating the Ponzi scheme mastermind’s firm, has personally been paid $3.6 million in fees since Madoff’s 2008 arrest, according to a filing yesterday in U.S. Bankruptcy Court in Manhattan. His law firm, Baker & Hostetler LLP, received $145.6 million, plus expenses of $3.4 million.

Bloomberg further notes that

Consultants employed by Picard were paid cumulative fees of $147.7 million through March, plus expenses of $4.8 million. Through March, Picard received more than $1.1 billion from SIPC and used 31 percent of the amount for fees, rent and other expenses.

About $346.3 million of the money advanced by SIPC was consumed by administrative expenses, while about $779.3 million was used to pay customer claims, Picard said. Expenses included rent for the con man’s former office in Manhattan, the trustee’s monthly fees and record-keeping, he said.

Office rent in the period was $114,762, while Picard’s personal fees were $134,240 and “hosting expense” totaled $487,128.

In considering the amount of fees over the initial period, Bloomberg relates,

“We should hope and expect that now that the trustee and his law firm are up to speed, they should incur costs at a lower rate,” said Stephen Lubben, a bankruptcy professor at Seton Hall University School of Law in Newark, New Jersey. “If the creditors get a very high percentage of their claims paid, they won’t care how much the trustee got paid.”

document Read the full Bloomberg article, Madoff Estate Lawyers, Advisers Get $318.4 Million in Fees Through March, here

The main case is Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, 08-ap-1789, U.S. Bankruptcy Court, Southern District of New York (Manhattan).


Professor Sarah Waldeck

Professor Sarah Waldeck in The Record, The Miami Herald , The Wichita Eagle, MSNBC and Other Media Sources Throughout the Nation on the Difficulty of Attributing Increases in Crime to Decreased Police Presence

May 18, 2011

Professor Sarah Waldeck appeared in an Associated Press feature article which was published in media sources all throughout the nation, including The Record, The Miami Herald , The Wichita Eagle, and MSNBC and CNBC. The article, “NJ crime increases raise issues of police layoffs,” asks whether a causal relationship can be said to exist between a decrease in police presence and an increases in crime, especially violent crime.

Professor Waldeck often teaches Criminal Law and published Cops, Community Policing, and the Social Norms Approach to Crime Control: Should One Make Us More Comfortable with the Others?, The Associated Press writes:

"The causality is very hard to ferret out," said Sarah Waldeck, a Seton Hall University law professor who has studied the effects of policing strategies on crime rates. "Typically, police forces get decreased during bad economic times, and rising crime rates can be attributable to bad economic times."

document Read the full MSNBC article, NJ crime increases raise issue of police layoffs, here

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Professor Stephen Lubben

Professor Stephen Lubben In the Wall Street Journal, NY Times and Standard & Poor’s LCD Weekly

May 04, 2011

Professor Stephen Lubben appeared in the Wall Street Journal regarding the looming battle between the various creditor interests over the remains of Lehman Bros, and in his column in the New York Times and in Standard & Poor’s on the problems of multiple Chapter 11 plans.

In the Wall Street Journal, Professor Lubben commented on the fight proceeding from the estate of Lehman Bros. At issue is the configuration of the bankruptcy plan with creditors to different parts of the Lehman Bros. estate vying for different dispositions. Perhaps unsurprisingly, the varied creditors are espousing dispositions most favorable to their respective positions.

WSJ writes:

In one corner is hedge fund manager John Paulson, whose firm made a fortune on the financial crisis that destroyed Lehman. Mr. Paulson has been snapping up bargain-priced debt of Lehman and is now one of its biggest creditors. His firm, Paulson & Co., is leading a group of hedge funds pushing one proposal for how to unwind the failed firm.

In another is Goldman, which itself made big bets against subprime securities that drove Lehman to collapse and on Monday led a group of banks presenting a competing plan that would pay a larger share of proceeds to them.

Both oppose a previous proposal filed to the bankruptcy court by Lehman's estate manager.

The Wall Street Journal further explains:

The Paulson group argues Lehman should be wound down by pooling all its sprawling parts together into one pot as the simplest and most efficient way to untangle the vast web of debts. The method is known as "substantive consolidation" in bankruptcy parlance.

The Goldman group argues that the claims should be kept separate because consolidation would invite litigation concerning intercompany claims between Lehman's various units.

"Substantive consolidation certainly makes everybody's life easier because you basically treat all the Lehman entities as if they were one corporation," said Stephen Lubben, a professor at Seton Hall University's law school who specializes in corporate bankruptcy and debt.

"But if you go that route," he said, "you're picking a huge fight."

Professor Lubben was also quoted in the article as saying "Everyone may just be staking out their bargaining positions with these plans. We may see some sort of plan that comes out that represents a negotiated solution between all three."

In Standard & Poor’s LCD Distressed Investor Weekly, Professor Lubben’s column in the New York Times on the problems of multiple Chapter 11 plans was quoted extensively in an article entitled, “Bankruptcy trends: Implications of Tribune’s multiple proposed plans.”

Standard & Poor’s writes:

Seton Hall law professor Stephen Lubben, a recognized expert and well-known commentator on bankruptcy issues, recently wrote on the New York Times’ Dealbook website, however, “We are now living with the consequences of that decision [to cap exclusivity at 18 months and allow alternative plans to be filed] in both the Lehman Brothers and Tribune Company bankruptcies, among other large Chapter 11 cases in which multiple plans emerged, and it has become clear that the implications of the change were not thought all the way through.”

Lubben goes on to explain that while the code allowed for multiple plans to be filed, it did not provide sufficient guidance or authority for bankruptcy-court judges to resolve the issues that the filing of multiple plans creates, specifically citing voting procedures and disclosure requirements. Tribune certainly seems like an intractable mess, but over the cycle, anecdotally, the filing of multiple plans in cases appears to have had a positive effect on resolving contentious cases– indeed, we would argue, even including Tribune – up to a point.

Lubben explains that multiple plan filings can benefit a case “as long as there is some structure.” More specifically, Lubben explains that in Six Flags and Visteon, for example, the filing of multiple plans “set boundaries for negotiations” that helped lead the cases to successful conclusions.

document Read the full New York Times DealBook article, The Problem With Multiple Chapter 11 Plans, here

document Read the full Wall Street Journal article, Fight for Lehman's Remains Heats Up, here


Professor Mark Alexander

Professor Mark Alexander in AOL’s Black Voices on the Death of Osama bin Laden

May 03, 2011

Professor Mark Alexander wrote a feature article for AOL’s Black Voices on the death of Osama bin Laden. Entitled “A Separate Peace for my Son,” the piece reflects upon a bin Laden-less world and notes the commitment Professor Alexander saw in President Obama to this process — even pre-election, when Alexander served as Obama’s Policy Director.

Professor Alexander writes,

Al Qaeda won't go away, but this symbolizes a giant leap forward, as the ringleader is gone forever.

This one man who orchestrated so many attacks on our great nation and others, aimed relentlessly to make us appear weak. But he failed to understand that through it all that when challenged, we would not collapse. We endured the attacks. We exchanged heated words over the proper policy. We stumbled, but did not fall. The greatness that is America will not fall to terroristic cowards. We went from one President to another, peacefully. And through it all, we persevered.

When I was Policy Director on the Obama presidential campaign, then-Senator Obama constantly made clear the paramount importance of this mission, and despite doubters and critics, he made it his priority from Day One on the job as President, without fanfare. To his great credit, he has remained focused on that mission.

document Read the full AOL Black Voices article, A Separate Peace for My Son, here

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Jordan Cohen '11

Jordan Cohen ’11 in The Health Care Blog on Accountable Care Organizations

April 28, 2011

Jordan Cohen ’11 wrote an article on the new proposed rules for Accountable Care Organizations which was featured in The Health Care Blog. The Health Care Blog has been described by the Wall Street Journal as "among the most widely read insider publications in the field,” and “a must-read blog.” Jordan Cohen’s article, “Summary of CMS Proposed Rule on Accountable Care Organizations, ” was originally published in Seton Hall Law’s Health Reform Watch, a weblog of the Center for Health & Pharmaceutical Law & Policy.

document Read the full The Health Care Blog article, Summary of CMS Proposed Rule on Accountable Care Organizations, here


Professor Baher Azmy

Professor Baher Azmy and students Mark Keogh, Dan Bause, William Conaboy and Douglas M. Nelson in The Record on their Defense of the First Amendment Against the Newark Police

April 27, 2011

Professor Baher Azmy and students Mark Keogh ‘11, Dan Bause ‘11, William Conaboy ‘11 and Douglas M. Nelson ’11 published an article in The Record entitled, “Are Newark Police overstepping the bounds of their authority?”

The article stems from the students’ litigation on behalf of Khaliah Fitchette. The Center for Social Justice, Civil Rights and Constitutional Litigation Clinic, along with the American Civil Liberties Union of New Jersey, recently filed suit against the Newark Police Department for violating the rights of a Fitchette, a 17 year-old honor student who was illegally handcuffed and detained for using her cell phone to video record police activity on a bus.

To the point, the article notes:

“So the question arises, why can the city of Newark use its hundreds of video cameras to videotape you and then turn around and arrest you for doing the same?”

document Read the full The Record article, Are Newark Police overstepping the bounds of their authority?, here


Practitioner in Residence Avidan Cover

Practitioner in Residence Avidan Cover along with Sebastian Sanchez ‘12 and Megan Cate ’13 in The Record on Abbott Funding and the New Jersey Supreme Court

April 26, 2011

Center for Social Justice Practitioner in Residence Avidan Cover, along with Sebastian Sanchez ‘12 and Megan Cate ‘13, appeared in The Record. The trio wrote an article recommending that the “New Jersey Supreme Court should stand by Abbott,” the line of cases which dictates that the state supply increased funding to New Jersey’s poorest school districts.

document Read the full The Record Op-ed, New Jersey Supreme Court should stand by Abbott, here


Professor Wilfredo Caraballo

Wilfredo Caraballo on Due Process Debating the Dream Act

April 26, 2011

Professor Wilfredo Caraballo appeared on the public television program, Due Process, hosted by attorney Raymond Brown (who often teaches as an adjunct here at Seton Hall Law) to discuss the DREAM Act with Temple Law Professor and former Assistant Commissioner, INS, Jan Ting, and Lawrence Lustberg, a Partner at Gibbons P.C. who is the Director of the John J. Gibbons Fellowship in Public Interest and Constitutional Law as well as a member of the State Advisory Committee to the U.S. Commission on Civil Rights.

Referred to by the host as “my guru on politics in the United States,” Professor Caraballo noted that the fear and demagoguery which has accompanied discussions of immigration in the public eye had, unfortunately, spread to discussions of the DREAM Act, and agreeing with Lawrence Lustberg, said “It’s about kids. Kids who are now without a country.”

video Watch the full NJN Due Process webcast here (begins at 8:40)

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Dean Patrick Hobbs

Dean Patrick Hobbs Appointed Chair of State Commission of Investigation

April 25, 2011

Governor Chris Christie ’87 has appointed Dean Patrick E. Hobbs Chair of the State Commission of Investigation. The State Commission of Investigation is an independent watchdog agency established in 1968 to investigate organized crime and corruption, waste of tax money and other abuses of the public trust. As chair, Dean Hobbs succeeds W. Cary Edwards ’70, who passed away this last October.

News of the appointment was covered by New Jersey’s major newspapers (See below) and initially announced by the following release from the State Commission:

TRENTON – Patrick E. Hobbs has been appointed Chair of the State Commission of Investigation by Governor Christopher J. Christie.

Hobbs, the Dean of Seton Hall Law School, has served as a member of the SCI’s governing board since 2004. He succeeds the late W. Cary Edwards to become the tenth presiding officer of the Commission in its 43?year history.

“I am honored by the trust placed in me by the Governor, and I am committed to ensuring that the SCI does its very best to serve the citizens of New Jersey as a premiere government watchdog agency,” Hobbs said. “My predecessors worked hard to set high standards for the SCI, and I welcome the opportunity to move that tradition to a new level of excellence.”

As SCI Chair, Hobbs will preside over the professional staff and operations of an independent state agency established in 1968 to investigate organized crime and corruption, waste of tax money and other abuses of the public trust. His colleagues on the Commission are Robert J. Martin and Todd Caliguire. One seat is currently vacant.

Under the SCI’s unique enabling statute, the Governor appoints two Commission members and designates the Chair. The President of the State Senate and the Speaker of the General Assembly each appoint one member.

The Commission has issued reports and conducted public hearings in connection with more than 120 investigations since its inception, resulting in millions of dollars in taxpayer savings and numerous government reforms. In recent years, the Commission has taken the lead in revealing waste and abuse in state and local government employee compensation, benefit and pension plans; the proliferation of organized criminal street gangs in New Jersey prisons; and the need for greater oversight and accountability of the State’s public higher education system. Significant investigations are ongoing in all areas of the Commission’s statutory purview.

Hobbs has served as Dean of Seton Hall Law School in Newark since 1999. From 1996 through 1999, he was Associate Dean for Finance. For the past two years, he has also overseen the Department of Athletics at Seton Hall University. He also serves on a number of boards of various organizations, including Puck Holdings LLC, which owns the New Jersey Devils and operates the Prudential Center in Newark, and Newark Beth Israel Hospital. A graduate of Seton Hall University, Hobbs earned his law degree from the University of North Carolina at Chapel Hill and an advanced law degree in taxation from New York University School of Law.

document Read the full New Jersey State Commission of Investigation, Patrick E. Hobbs Named Chair of SCI, here

document Read the full Star Ledger article, Gov. Christie names Seton Hall Law School Dean Hobbs to chair State Commission of Investigation, here

document Read the full New Jersey Law Journal article, Seton Hall Law Dean Hobbs Named SCI Chairman, here

document Read the full The Record article, Law School dean to head NJ watchdog agency, here

document Read the full New Jersey Newsroom article, Seton hall Law School dean Patrick Hobbs to chair N.J. State Commission of Investigation, here

document Read the full Asbury Park Press article, Law school dean to head NJ's State Commission of Investigation, here

document Read the full Press of Atlantic City article, Law school dean to head New Jersey's watchdog, here

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Professor Mark Alexander

Professor Mark Alexander in The Huffington Post and Black Voices in Honor of Military Families Week

April 19, 2011

Professor Mark Alexander was featured in The Huffington Post and AOL’s Black Voices in honor of Military Families Week. Professor Alexander reflected upon his own experience as the son of the former Secretary of the Army, Clifford Alexander, recounting how his father taught him to “deeply value the ultimate commitment to country” of those who serve and how the lessons of common humanity, respect for others and pride in one’s own identity learned from both his parents informed his sense of self and his commitment to service.

document Read the full Huffington Post article, Military Families Week: Notes of a Military Son, here

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Professor Frank Pasquale

Professor Frank Pasquale in The Wall Street Journal on Source Code Protections Sought by Toyota

April 01, 2011

Seton Hall Law Professor Frank Pasquale, who is this semester a visiting fellow at the Princeton University’s Center for Information Technology Policy, appeared in The Wall Street Journal regarding the extraordinary steps Toyota Corp. has taken to protect the source code, “the software that controls sophisticated engine management and other electronics in its vehicles,” in litigation concerning the much-publicized allegations of sudden acceleration incidents in its vehicles.

The Wall Street Journal notes

The Japanese auto maker has been fighting to restrict access to the software, saying it needs to protect what it calls the "crown jewel" of its global enterprise.

Toyota said the attorneys should only be allowed to view parts of the code in a highly secure room, the likes of which is used by members of Congress or in trials against terrorists and spies for viewing classified information.

Toyota is also demanding attorneys submit to iris and palm scans in order to know who is viewing the software, and all software-related documents be tagged with chip-based tracking tags, known as radio frequency identification technology, to avoid improper dissemination.

Of Toyota’s measures, Professor Pasquale commented, "I haven't seen many cases go to such extraordinary lengths. But I think this is the wave of the future. You've got to have more and more professionals involved to understand the source code."

The Wall Street Journal noted

Plaintiffs have hired 10 engineers to review Toyota's code. Toyota has asked that plaintiffs' engineers link to its servers to access the code to ensure it isn't being altered as it is reviewed. Toyota also had wanted them to view only a few lines of code at a time and to erase them from their computers at the end of every day.

document Read the full Wall Street Journal article, Toyota Fights to Limit Access to 'Crown Jewels', here

Professor Maya Grosz

Professor Maya Grosz

Professor David White
Professor David White

Seton Hall Law’s Investor Advocacy Project Featured in the New Jersey Law Journal

March 31, 2011

Seton Hall Law’s latest initiative, the Investor Advocacy Project, was the subject of a feature article in the New Jersey Law Journal. The Project offers free legal representation to investors with limited income or small dollar claims who have a dispute with an investment professional and are unable to obtain legal counsel. The Project is the first of its kind in New Jersey and was funded by a $250,000 grant from the FINRA Investor Education Foundation. The FINRA Foundation is the largest foundation in the United States dedicated to investor education. Students will work under the supervision of professors to provide legal representation and gain valuable legal experience while providing a much needed service.

The NJLJ notes

Pro bono efforts are traditionally geared toward the indigent. But investors with up to $100,000 in annual household income or stock losses will be eligible on the assumption that they would find it too costly to hire a lawyer. They must also be New Jersey residents.

Investment contracts usually require that claims against brokers, such as alleged unauthorized trading or unsuitable investment strategy, go through alternative dispute resolution, and the students will assist investors with arbitrating, mediating and negotiating resolutions.

The project is not one of the clinical programs that are part of the school’s Center for Social Justice but falls under the Skills Curriculum, and will be run by Professor David White, director of the Conflict Management Program.

The representation will be provided by eight students who will earn five credits for the full-year course, which starts this fall, while they gain first-hand experience in counseling clients and managing cases.

document Read the full New Jersey Law Journal's article, Small Investors Who Lost Savings To Get Help at Seton Hall Law School, here

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Professor Hafetz

Professor Jonathan Hafetz Featured in the Huffington Post on U.S. Court of Appeals Guantánamo Decision

March 29, 2011

Professor Jonathan Hafetz appeared in the Huffington Post regarding a recent decision by the U.S. Court of Appeals on Guantanamo detainees and the appropriate standard for holding a detainee. Noting a number of recent setbacks for defense practitioners before the Guantanamo Bar, the article states that

…the appeals court went further by reversing the habeas win outright. In doing so, the court determined that circumstantial evidence, such as a detainee being in the same location as other al-Qaeda members, is enough to meet the standard to hold a prisoner without charge.

The Huffington Post noted

Jonathan Hafetz, a professor at Seton Hall University School of Law who has represented a number of Guantanamo detainees including Salahi, said today's opinion significantly favors the government in ways the Supreme Court did not intend when it granted detainees the right to challenge detentions.

"The Uthman case cements the trend in the D.C. Circuit's decisions toward a broad and malleable definition of who can be considered 'part of' al Qaeda, combined with a highly deferential view of the government's interpretation of the facts," Hafetz said, "In many cases, the result is indefinite detention based on suspicion or assumptions about a detainee's behavior."

Hafetz argued that today's decision conflicts not only with the approach taken by the district courts but also with the Supreme Court. Hafetz said the Supreme Court "mandated a meaningful judicial process in which the government would be called to account; Uthman says judges should not require much in the way of an answer."

document Read the full Huffington Post article, Appeals Courts Makes It Easier For Government To Hold Gitmo Detainees, here

Professor Bryan Lonegan

Professor Bryan Lonegan

Center for Social Justice Report Cited by Assemblywoman as “Inspiration” for New Legislation to Protect Workers

March 27, 2011

Citing the Seton Hall Law Report, All Work and No Pay: Day Laborers, Wage Theft, and Workplace Justice in New Jersey, as “inspiration,” Assemblywoman Annette Quijano has sponsored legislation, the Wage Theft Protection Act, to protect workers across New Jersey.

The legislation seeks to adopt many of the recommendations put forward in the Seton Hall Law report. The Daily Record notes,

Assemblywoman Annette Quijano, D-Union, filed a bill almost two weeks ago called the Wage Protection Act that would increase penalties for employers found guilty of violating the state's wage laws. Not only would such employers be required to repay illegally withheld wages, they also would be required to pay damages and be fined $1,000 plus 20 percent of withheld wages on the first offense. Convicted employers also would be subject to losing various state licenses.

Justin Braz, Quijano's chief of staff, said the bill was inspired by a Seton Hall Law School report released in January focusing on the alleged exploitation of day laborers. But he added that the bill was broader than that because the problem of employers violating the state's wage laws goes beyond those who hire undocumented workers.

"The intent is to protect all workers who deserve to get paid," he said.

Seton Hall Law professor, immigration attorney and report co-author Bryan Lonegan said, “Our reports at the Center for Social Justice at Seton Hall Law showed widespread wage theft and worker abuse throughout the state. As I said when the last report was issued, ‘These workers are being robbed, injured and beaten with impunity because of weak, under-enforced and antiquated labor laws. And unfortunately, immigrant day laborers are just the highly visible tip of the iceberg. It happens all the time in restaurants, gas stations, home healthcare, janitorial, laundries, car washes and beauty and nail salons.’”

“I am encouraged to see that legislators have taken note and are attempting to offer meaningful relief for a problem which affects all workers. Our research found that the present law on the books in New Jersey is rarely used, widely unknown, and almost wholly ineffective in preventing wage theft and worker abuse.”

“Our research at the Center has also shown that wage theft and worker abuse has been significantly lessened in states and municipalities throughout the country where workers are given direct access to municipal courts to file complaints, and laws are passed which institute criminal sanctions for wage theft — including fines and potential loss of business licenses for offenders. Based on our research, our reports recommend these measures. The bill before the New Jersey Assembly contains these very important components — and if enacted and enforced our research suggests they can be expected to help stem the particularly pernicious tide of worker wage theft and abuse.”

The report revealed that 48% of immigrant day laborers in New Jersey were not paid on at least one occasion over the last year; 94% were not paid overtime when due; 43% were never given safety equipment; 26% were seriously injured at work; and 26% were assaulted by their employer.

Seton Hall Law student and report co-author Joshua Trojak said, “As a student, it’s rewarding to know that your work was featured by media sources throughout the state and country. The report appeared in the New York Times, The Huffington Post, Forbes, BusinessWeek, CNBC, the Star Ledger, The Record, the Asbury Park Press, Daily Record, Home News & Tribune, Univision TV & Radio, El Diario, and Nowy Dziennik. But it’s even better to realize that the work we did here is having a larger impact — that conscientious legislators took note, and are now going to do something about it.”

document Read the Daily Record article, Legislation targets employers who shortchange illegal immigrants, here

document Read the Report, All Work and No Pay: Day Laborers, Wage Theft, and Workplace Justice in New Jersey, here

Dean Patrick Hobbs

Patrick Hobbs, Dean

Governor Christie
Governor Christie

Governor Chris Christie ’87, Dean Patrick Hobbs and a Number of Alumni Named to List of Most Powerful People in New Jersey

March 21, 2011

NJBIZ, the weekly newspaper covering New Jersey’s business community, published its “Power 100,” a list of the 100 most powerful people in New Jersey Business. The rankings, which focused on New Jersey leaders with the greatest influence in the state, included eight from Seton Hall Law: seven alumni, and our very own Dean Hobbs.

Governor Chris Christie ’87, fittingly took the top spot. Elected governor of the State of New Jersey in 2009, he is former partner of the law firm Dughi, Hewit & Palatucci in Cranford, NJ, Chief Federal Law Enforcement Officer in New Jersey, and United States Attorney for the District of New Jersey. Governor Christie is a member of the Seton Hall Law Board of Visitors and was the 2010 Commencement speaker.

At No. 53, surpassing Jon Stewart (No. 88), Bruce Springsteen (No. 95), and Mark Zuckerberg (No. 98), is the Commissioner on the New Jersey State Commission of Investigation, and Seton Hall Law School’s Dean, Patrick E. Hobbs.

In addition to Governor Christie and Dean Hobbs:

• William J. Palatucci ’89 (No. 13) is the Senior Vice President and General Counsel for Public Affairs at the Community Education Centers in West Caldwell, NJ. Mr. Palatucci is a former partner of the Cranford, NJ law firm, Dughi, Hewit & Palatucci, P.C., and served as Co-Chairman of the Inaugural Committee for Governor Chris Christie and Lt. Governor Kim Guadagno. Mr. Palatucci is a member of the Seton Hall Law Board of Visitors.

• Al Koeppe ’75 (No. 24) is the Chairman of the state Economic Development Authority and CEO of the Newark Alliance. Mr. Koeppe is the former President and COO of PSE&G, CEO of Bell Atlantic-NJ, trial attorney for the State Department of the Public Defender, and Chairman of the State Supreme Court Commission to reform the New Jersey court system.

• Edward B. Deutsch ’71 (No. 27) is the Managing Partner of McElroy, Deutsch, Mulvaney & Carpenter LLP, a Morristown, NJ based law firm, and the former Chairman of Somerset Hills Bank and the Governor’s transition team on banking and insurance.

• Rosemary T. McFadden ’77 (No. 28) is Jersey City’s Deputy Mayor and Chief of Staff charged with overseeing economic development citywide.

• Michael Critchley, Sr. ’72 (No. 29) is the founding partner of the Roseland, NJ law firm, Chritchley, Kinum and Vazquez, LLC, and a former Assistant Prosecutor in the Essex County Prosecutor’s Office and Assistant Counsel to former New Jersey Governor Brendan T. Byrne. Mr. Critchley is a member of Seton Hall Law Board of Visitors.

• Dale J. Florio ’86 (No. 50) is an attorney and founder of the Princeton Public Affairs Group in Trenton, NJ, and former GOP Chairman in Somerset County, NJ.

• At No. 53, surpassing Jon Stewart (No. 88), Bruce Springsteen (No. 95), and Mark Zuckerberg (No. 98), is the Commissioner on the New Jersey State Commission of Investigation, and Seton Hall Law School’s very own professor and Dean, Patrick E. Hobbs.

• Patrick Dunican, Jr. ’91 (No. 58) is the current Chairman and Managing Director of Gibbons P.C., a Newark, NJ law firm, member of the Seton Hall Law Board of Visitors and Co-Chair of the Seton Hall Law Rising capital campaign, and the future honoree of Seton Hall Law’s annual Dinner Dance on April 29, 2011.

document Read the NJ Biz article for the complete “Power 100” list here

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Professor David Opderbeck

Professor David Opderbeck in The Record Regarding Alleged Trademark Infringement On New Jersey Icon Rutt’s Hut

March 17, 2011

Professor David Opderbeck appeared in The Record regarding an alleged trademark infringement upon New Jersey icon, Rutt’s Hut of Clifton, which is widely known for its deep fried “ripper” hot dogs.

The Record notes that “Rutt's Hut has been featured in several TV shows and magazines. The book "500 Things to Eat Before It's Too Late" said that "no hot dog lover can say his life is complete until he has dined at Rutt's."”

In January, 2011, Adam's Bagel & Deli, also of Clifton, was renamed “Mutt's Hut.” The eatery is said to have served hot dogs prior to and since changing its name to “Mutt’s Hut,” a name the co-owner of Adam’s/Mutt’s has held a trademark on since 2006.

Rutt’s Hut maintains that the name engenders confusion among customers and potential customers.

The Record notes

David W. Opderbeck, a law professor at Seton Hall University School of Law who specializes in patent and trademark issues, said the court will look at a variety of factors in assessing whether a violation has occurred — including some that seem to support that argument.

Among them, he said, are the similarity of the two names, whether the products sold under each name are alike and the strength of the Rutt's Hut trademark, or how distinctive it is.

Another element, he said, is likely to be "Is there any evidence of actual confusion … letters, phone calls from customers saying 'Oh, I didn't know you had opened a new branch.'

document Read the full The Record article, Rutt's Hut in legal dogfight over name, here

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Professor Jonathan Hafetz

Professor Jonathan Hafetz featured on NPR’s Focus Regarding his New Book, Habeas Corpus After 9/11: Confronting America’s New Global Detention System

March 15, 2011

Professor Jonathan Hafetz appeared on National Public Radio’s Focus, an Illinois Public Media program, to speak about his new book, Habeas Corpus After 9/11: Confronting America’s New Global Detention System. In the interview (as well as the book) Professor Hafetz makes the point that Guantanamo should not be viewed in isolation, but as part of a global system that is designed to operate outside the law— but not, however, outside the reach of the Great Writ.

icon_listen Listen to the NPR interview here

Center for Policy & Research

Center for Policy & Research

Latest GTMO Report, Rumsfeld Knew Featured in The Washington Post

March 03, 2011

“Rumsfeld Knew: DoD's 'Worst of the Worst' and Recidivism Claims Refuted by Recently Declassified Memo,” was featured in The Washington Post. The Center discovered a recently declassified memo written by Defense Secretary Rumsfeld to the Joint Chiefs of Staff, in which Secretary Rumsfeld complained that Guantanamo is filled with “low level” detainees, explicitly contradicting his continued public statements that Guantanamo Bay was reserved for the “worst of the worst.”

“Rumsfeld Knew” suggests that the misrepresentations of the dangerousness of those sent to Guantanamo is of a piece with the government’s continuing public characterization of those who had been detained at Guantanamo as having “returned to the battlefield” or “reengaged” against the United States.

document Read the full Washington Post article, Rumsfeld complained of 'low level' GTMO prisoners, memo reveals, here

document Read the full Seton Hall Law Press Release and Report, Rumsfeld Knew, here

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Professor Stephen Lubben

Professor Stephen Lubben in the New York Times on Bankruptcy

March 02, 2011

Professor Stephen Lubben writes a regular column in the New York Times’ DealBook. His most recent columns involved Ambac, a Wisconsin Insurance Company which bifurcated its collateralized mortgage security insurance business and avoided more stringent state regulation as insurers for part of its portfolio by referring to the underlying instruments as “collateralized security swaps” instead of “insurance.” Interestingly enough, when the losses hit the fan, it was the more lightly regulated holders who wound up getting paid.

Professor Lubben also wrote about Blockbuster, the former movie rental giant, in the midst of Chapter 11. Professor Lubben notes that the plan currently afloat “calls for the senior noteholders to finance operations until a sale, after which the lenders will become owners and the pre-bankruptcy unsecured creditors will get bupkis. (That’s the technical bankruptcy term, of course.)”

Professor Lubben also notes that this plan would leave post bankruptcy trade creditors largely out in the cold and frames the matter accordingly:

The larger issue looming here is when is it appropriate for bankruptcy courts to facilitate a sale that benefits nobody except the senior lenders.

More broadly, there are important policy considerations embedded in the decision to allow a corporate reorganization scheme to transform into a kind of supercharged foreclosure mechanism, particularly if secured lenders are able to avoid incurring costs that they would normally absorb in a state debt collection action. That question becomes especially problematic when the bankruptcy code allows the debtor to run up further exposure to trade creditors, while limiting the ability of those creditors to terminate their relationship with the debtor.

document Read the full New York Times Dealbook article, Through the Looking Glass with Ambac, here

document Read the full New York Times Dealbook article, Blockbuster and the Pushback by Unsecured Creditors, here

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Professor Jonathan Hafetz

Professor Jonathan Hafetz featured on Australian Broadcast Corp. National Radio regarding 'a look back' at Guantanamo Bay

March 02, 2011

Professor Jonathan Hafetz was featured on the Australian Broadcast Corporation (ABC) National Radio program, “Rear Vision,” examining the legal and political history of the Guantanamo Bay detention camp while asking the questions “Why hasn’t President Obama closed it?” and “Where do we go from here?”

Professor Hafetz: “ If there’s going to be any real pressure point, politically, or with the courts, at Guantanamo, it’s going to involve the detainees who’ve been cleared for release — or who have won their court cases — and yet are still sitting at Guantanamo. Because that is the area where the Administration is most vulnerable — if not with the public, at least with the courts.”

icon_listen Listen to the ABC feature broadcast here


Professor Jenny Carroll

Professor Jenny Carroll in the Star Ledger on the Prospect of Visitation Privileges for an 80 Year-old Man Accused of Stabbing and Attempting to Murder the Wife He Wishes to Visit

February 23, 2011

Professor Jenny Carroll appeared in the Star Ledger offering commentary in regard to a case in which an 80 year-old man accused of stabbing and attempting to murder his 73 year-old wife has sought court permission to visit his wife. The husband, who is said to have stabbed himself after stabbing his wife, is free on bail, non-contact with his wife a condition thereof. He is said to suffer from “early dementia and depression” and is under the care of a psychologist. The visitation is said to be a "component of his therapy."

The wife, who cannot speak on account of a prior stroke, and is now said to be terminally ill with cancer, is in a nursing home; the couple’s son serves as her legal guardian.

The prosecutor in the case opposes the request for visitation, as does a spokesperson for a victims’ rights advocacy group, citing difficulty in ascertaining the wife’s wishes. It is unclear if the wife, who cannot speak, is also incapable of alternative means of communication. It is also unclear whether the court will find that the wife’s legal guardian, the couple’s son, is sufficiently detached to make a decision in the matter which serves the best interests of the 73 year-old woman, or if a guardian ad litem would need to be appointed. The request sits before Superior Court Judge N. Peter Conforti in Newton, NJ.

The Ledger writes:

It won’t be easy for Conforti to decide whether to allow the visit, said Jenny Carroll, an associate professor at Seton Hall Law School who is an expert in criminal law.

"It’s hard to determine what’s in her best interests. This is a very complicated situation," Carroll said.

"At the end of the day, you have to ask yourself, ‘Can the court balance the rights of these two people?’ If the court can guarantee her physical and emotional safety, there’s no reason it can’t allow the visitation, no matter what the motivation," she said.

document Read the full Star Ledger article, Vernon man who allegedly stabbed disabled wife seeks to visit her as part of 'therapy', here


Professor John Jacobi

Professor John V. Jacobi featured in The Record on Vaccine Policy and Religious Exemptions in New Jersey

February 22, 2011

Professor John V. Jacobi published a feature Op-ed in The Record on New Jersey’s vaccine policy and exemptions therein granted under religious grounds. Professor Jacobi notes that “Last summer the Department of Health and Senior Services amended its regulations to simplify the process for obtaining this exemption. Several legislators, pointing to New Jersey’s drop in childhood immunization rates, have filed a resolution to force the withdrawal or amendment of this relaxed standard.”

Professor Jacobi further notes the potential dangers inherent in decreased immunization rates, and offers a number of practical solutions for minimizing the impact of such exemptions through policy adjustments.

document Read the full The Record article, Navigating Vaccine Policy in New Jersey, here

Center for Social Justice

Center for Social Justice

Center for Social Justice in the Asbury Park Press, Courier Post and Daily Record Regarding Most Recent Day Laborer Wage Theft Report

February 12, 2011

The most recent report from the Center for Social Justice (CSJ) on wage theft and worker abuse against immigrant day laborers in New Jersey was featured in the Asbury Park Press, the Courier Post, and the Daily Record. The article in each newspaper used the findings of the CSJ report as a basis, and then localized the story with varying narratives from immigrant day laborers and activists from each newspaper’s respective area.

The CSJ Report, “All Work and No Pay: Day Laborers, Wage Theft, and Workplace Justice in New Jersey,” written by Professor Bryan Lonegan and Seton Hall Law students, showed widespread theft and abuse and when first released received wide media coverage throughout the state, and in national media sources such as the New York Times and the Huffington Post.

document Read the full Asbury Park Press article, Dark side of labor: Wage theft common among undocumented day laborers, here

document Read the full Daily Record article, Dark side of labor: Though often cheated, humiliated, Morris day laborers have rights, here

document Read the full Courier Post article, Study: Day laborers vulnerable to variety of employer abusers, here

video Watch the Program Highlight about the Report here

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Professor Stephen Lubben

Professor Stephen Lubben in The Wall Street Journal in “Bankruptcy Experts Gather to Set Research Agenda”

February 10, 2011

Professor Stephen Lubben appeared in The Wall Street Journal in regard to the conference, “Setting the Big-Bankruptcy Empirical Research Agenda,” held in Los Angeles and featuring more than a dozen of the country’s leading bankruptcy experts. Professor Lubben was one of four such experts described in the WSJ article. The conference was organized by Professor Lynn M. LoPucki, the leading bankruptcy expert, other than Professor Lubben, in analyzing costs for large Chapter 11 bankruptcies.

Professor LoPucki uses a multi-year database whereas Professor Lubben primarily uses a single year database. WSJ notes

Seton Hall law professor Stephen J. Lubben has specialized in studying the cost of large Chapter 11 cases, albeit using different models. Lubben wants to put his to the test on the data that LoPucki has gathered for close to 20 years.

If you click on “wants to put his to the test” in the WSJ text above, it will bring you to the Memorandum Professor Lubben issued to Professor LoPucki and other conference participants. In the memo, Professor Lubben describes the recent state of discordant affairs in large Chapter 11 case cost analysis:

One key subcategory of chapter 11 empirical research has involved the cost of large chapter 11 cases. But to date much of this literature – which has largely been driven by the two of us, especially in recent years – has proceeded in some degree of isolation.

In particular, I have tended to use single year datasets and you have used your multi-year database, with its focus on somewhat larger cases. And never the two shall meet.

And then offers a challenging solution to Professor LoPucki:

I think going forward there should be an even greater effort to test the robustness of both of our fee models on a variety of datasets. The obvious place to begin is to test some of my models on the BRD [Professor LoPucki’s “Bankruptcy Research Database].”

document Read the full Wall Street Journal article, Bankruptcy Experts Gather to Set Research Agenda, here

document Read Professor Lubben’s Memorandum here

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Professor Stephen Lubben

Professor Stephen Lubben in his Column in The New York Times DealBook Regarding Chapter 11 “Gift” Plans

February 08, 2011

Professor Stephen Lubben appeared in the New York Times’ DealBook section, for which he writes a regular column on bankruptcy related matters. This week, Professor Lubben discussed the recent decision by the Second Circuit Court of Appeals which may well have put an end to the practice known as a “Gift Plan” in the Chapter 11 bankruptcy context. As Professor Lubben notes,

A gift plan involves a senior (typically secured) creditor that decides to allow the debtor to give some value to junior creditors, despite the senior creditor’s entitlement to be paid in full before these other creditors receive anything. This action becomes controversial when the gift passes over some intermediate class and goes to some subordinate group, like pre-bankruptcy shareholders.

Professor Lubben then examines the implications of the court’s disallowance of the practice.

document Read the full New York Times article, Ruling Appears to End to Chapter 11 'gift' Plans, here

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Professor Michael Risinger

Professor Michael Risinger in a Feature Article in The Austin Chronicle on the Role of Experts in Civil and Criminal Trials

February 04, 2011

Professor Michael Risinger appeared in a feature article in The Austin Chronicle, a popular alternative weekly which some have described as Texas’ answer to The Village Voice.

The article, “A Parliament of Experts: Did ‘expert’ testimony convict an innocent woman of murder,” considers the case of Rosa Jiminez, who was convicted in the death, by asphyxiation with a wad of paper towels, of a 21 month old boy that she was watching along with her own 1 year old.

A recent documentary on the case engendered support for Ms. Jiminez. Only 19 at the time the death happened, Ms Jiminez has recently been granted a new trial based on ineffective assistance of counsel and a dearth of experts testifying on her behalf (the court had refused to pay for such). In addition, Ms. Jiminez’ attorney is said to have failed to properly object to ‘expert’ testimony beyond the scope of expertise.

Professor Risinger, a noted expert on experts and expert testimony, discussed the trends in evidence in both the civil and criminal context.

The Chronicle writes:

According to professor D. Michael Risinger, who teaches at Seton Hall University School of Law and has been "observing" the use of experts since the late 1970s, understanding of the use and influence of experts has certainly increased over the last four decades, but that doesn't mean experts are necessarily better used – or that unreliable testimony is being kept out of court. "What you're seeing are more fights [over evidence] ... but that doesn't mean you're seeing more things excluded," he said. In brief, Risinger notes that in civil cases, lawyers and judges are much more stringent about the use of experts and about the subjects on which specific experts may testify – civil defendants "most of the time" are able to keep out plaintiffs' proffers of expert testimony, he wrote in a 2000 law review article. In the criminal context, however – with life or liberty at issue – the opposite appears to be true, and criminal defendants usually lose in their efforts to exclude expert testimony proffered by the state. In general, Risinger says, "criminal defense attorneys have done a miserable job" at keeping questionably reliable expert testimony out of evidence– in part, he says, because criminal defenders are often overworked and saddled with too much to do and too few resources with which to do it.

document Read the full Austin Chronicle article, A Parliament of Experts, here

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Professor Frank Pasquale

Professor Frank Pasquale was named 'Featured Academic' by Technology, Academics, Policy and featured in The Economist on the Status of the Health Care Reform Law

February 03, 2011

In becoming a Featured Academic at Technology, Academics, Policy (TAP), Professor Pasquale joins professors from Stanford, Harvard, University of Chicago, UC Berkeley, University Pennsylvania, Northwestern and George Washington University law schools, to discuss and debate the legal and policy implications of technology as it relates to intellectual property, patents and licensing, competition policy and antitrust, privacy and security, economic growth and the knowledge economy.

Established and facilitated by Microsoft, the goal of TAP is to promote academic research and generate substantive policy debate around these topics.

In The Economist, Professor Pasquale appeared in an article, “Dead or alive? Another blow for Barack Obama’s health reforms is struck by the courts,” which considered the implications of Judge Vinson’s federal district court decision in Florida on the unconstitutionality of the health reform law. The Economist writes:

Frank Pasquale, a professor of health-care regulation at Seton Hall University’s law school, sees scope to challenge Mr Vinson’s findings. The judge was unusually florid in his arguments. He made colourful references to libertarian websites, broccoli and the government’s takeover of GM. There was lots of discussion of the intentions of the Founding Fathers, and relatively little reliance on boring old legal precedent. One of the precedents Mr Vinson did dwell on, from 1935, has since been widely discredited, Mr Pasquale points out. In general, he argues, even the more conservative members of the Supreme Court have taken a more generous view of the federal government’s power to regulate commerce in recent years.

document Read the full The Economist article, Dead or Alive?, here

document Read more of Professor Pasquale’s contributions to TAP here

Professor Michael Risinger

Professor Michael Risinger

Leslie Risinger
Professor Lesley Risinger

The Last Resort Exoneration Project Launched and Featured!

February 03, 2011

The Last Resort Exoneration Project at Seton Hall Law celebrated its official launch and was featured in the New Jersey Law Journal, Star Ledger, The Record, Asbury Park Press, The Innocence Project Blog, on News 12 (Spanish), Fios TV News, WCBS Radio, and in newspapers everywhere from the Stamford Connecticut Advocate to Charleston West Virginia’s Daily Mail and the Beaumont Advocate of Texas.

Described by the New Jersey Law Journal in its front page feature as “New Jersey’s Answer to the Innocence Project,” The Last Resort Exoneration Project, headed by Lesley Risinger and Professor Michael Risinger, will focus on non-DNA exonerations of the actually factually innocent convicted in New Jersey. The newest Seton Hall Law initiative was met with acclaim by speakers Barry Scheck of The Innocence Project and famed criminal defense attorney and host of New Jersey Network’s Due Process, Raymond A. Brown.

After describing Director Lesley Risinger’s previous role in two successful non-DNA exonerations, the last of which took her four years but freed a man found “innocent” by the court after 18 years in prison, The Record article notes of the Risingers,

"I have come to feel that this is my calling," she said.

Michael Risinger said the idea of an innocent person sitting in prison "calls out to a lot of people."

"Everyone agrees the conviction of an innocent person is extreme injustice," he said. "It's incumbent upon the system itself to make an effort to discover that problem and do something about it. That's what we are doing."

Along with News 12 and Fios, Due Process filmed the event and will feature a half hour show on the Exoneration Project scheduled for April, 2011.

document Read the full New Jersey Law Journal feature, N.J. Answer to Innocence Project Launched at Seton Hall Law School, here

document Read the full Star Ledger, Bob Braun feature, Seton Hall Law School sponsors project that aims to exonerate the wrongfully convicted in N.J., here

document Read the full The Record feature, Seton Hall Law School project seeks to exonerate wrongly convicted, here

document Read the full Innocence Project Blog, Seton Hall Law School Launches Innocence Initiative, here

icon_listen Listen to the full WCBS radio interview with Lesley Risinger, Lawyer Hopes To Free Innocent Inmates In New Jersey, here

document Visit The Last Resort Exoneration website here

Health Reform Watch

Health Reform Watch

Health Reform Watch in the NY Times, The Health Care Blog and the Atlantic on Judge Vinson’s Federal Court Decision on the Unconstitutionality of the Health Reform Law

February 02, 2011

Health Reform Watch, a web log of Seton Hall Law School’s Center for Health & Pharmaceutical Law & Policy, which features writing from both students and professors on various aspects of health law and reform, had an article by frequent HRW contributor Professor Mark Hall of Wake Forest featured and cited in the New York Times, the Atlantic and The Health Care Blog.

Professor Hall’s critique of the Opinion in STATE OF FLORIDA, by and through Attorney General Pam Bondi, et al. v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., is entitled “Judge Vinson’s Tea Party Manifesto,” and was first published in HRW and then in The Health Care Blog through a syndication agreement between the two blogs. In the article, Professor Hall notes flaws in Judge Vinson’s Opinion—its paucity of legal precedent, its tautological argument regarding the Necessary and Proper Clause, and its resemblance to political polemic.

As the New York Times quoted:

“On first read, the most striking aspect of Judge Vinson’s ruling today is not its remedy — striking the Affordable Care Act in its entirety — but the impression one gets that the opinion was written in part as a Tea Party manifesto,” Mark Hall, a law professor at Wake Forest University, wrote on the blog Health Reform Watch.

In The Atlantic article, “The Vinson Ruling and the Strange Nature of American Judicial Review,” it was noted that

Mark Hall of Wake Forest Law School has done double duty with a tightly reasoned paper dissecting the flawed argument that the so-called "individual mandate" is an unconstitutional regulation of "inactivity," and a shorter post pointing out the judge's seemingly conscious adoption of the rhetoric of the Tea Party, comparing the "mandate" to, among other things, the Stamp Act that sparked the American revolution.

document Read the full New York Times article, Tea Party Shadows Health Care Ruling, here

document Read the full The Atlantic article, The Vinson Ruling and the Strange Nature of American Judicial Review, here

document Read the full Health Reform Watch article, Judge Vinson’s Tea Party Manifesto, here

document Read the full Health Reform Watch articles syndicated by The Health Care Blog here

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Professor Carroll

Professor Jenny Carroll on Fox TV News on the Insanity Defense as a Matter of Federal and Arizona State Law

January 28, 2011

Professor Jenny Carroll appeared on Fox TV News discussing the insanity defense as it is structured in federal and Arizona state law. The discussion was rooted in a segment concerning Jared Loughner, the Arizona man accused of shooting Congresswoman Gabrielle Giffords and killing six others. Loughner faces both federal and state charges. Professor Carroll explained to the audience that unlike federal law, Arizona utilizes a verdict of “guilty but insane.” Under this potential Arizona verdict, Professor Carroll explained, that if returned to sanity, the insane but guilty will not go free. In addition Professor Carroll discussed the risks of mounting an insanity defense.

document Read the full Fox News article, 56% Want Death Penalty for Arizona Shooter, and watch video, here.

Professor Jonathan Hafetz

Professor Jonathan Hafetz in the BBC News and Deutsche Welle’s World

January 25, 2011

Professor Jonathan Hafetz was interviewed by Deutsche Welle’s World. Deutsche Welle is Germany’s international broadcaster; similar to the BBC World Service, it broadcasts news and information on shortwave, Internet, and satellite radio in 30 languages.

In the World’s feature interview, Professor Hafetz discusses the repercussions of a return to Military Commission hearings in Guantanamo, noting that the plan to resume these hearings can be seen as another “setback” for the promise to close Guantanamo.

Read the interview here

In BBC News, Professor Hafetz commented on the repercussions of the verdict in federal court for Guantanamo detainee, Ahmed Ghailani. The first detainee to be tried in civilian court, Mr. Ghailani was found guilty of conspiracy to damage or destroy US property with explosives in connection with the 1998 bombings of two US embassies in East Africa. He was cleared, however, of more than 200 other charges, including intent to kill. Mr. Ghailani had been subjected to what is known as “enhanced interrogation” during his detention which led the judge in his trial to disallow the testimony of a key witness because the existence of the witness was wrung from Ghailani “under duress,” making the witness’ testimony essentially “fruit of the poisonous tree.”

Although that one charge under which he was found guilty resulted in Ghailani being sentenced to life in prison, opponents of civilian trials for detainees used the failure of the other 200 plus charges to call for the cessation of civilian trials for detainees. Congress then stepped in.

The BBC writes:

In the weeks following the Ghailani verdict, Congress passed a law preventing military funds from being used to transfer Guantanamo inmates to the US.

This makes it in practice very difficult for the Obama administration to empty the detention centre, and to move detainees and try them in civilian courts in the US.

Professor Jonathan Hafetz of Seton Hall Law School in New Jersey, who represents a Guantanamo detainee, said it would have been much harder for Congress to pass such a law if Ghailani had been convicted on all counts.

"The Ghailani verdict provided ammunition for lawmakers and groups opposed to the use of civilian courts to thwart the future use of the federal justice system," he said.

document Read the full BBC article, Ahmed Ghailani Sentence: The Future of Guantanamo, here


Professor Mark Denbeaux

Professor Mark Denbeaux in Stars and Stripes on Mefloquine Dosing at GTMO

January 23, 2011

Professor Mark Denbeaux appeared in an article in Stars And Stripes regarding the most recent report by the Center for Policy & Research, “Drug Abuse: An Exploration of the Government's Use of Mefloquine at Guantánamo.” Stars And Stripes was founded during the Civil War by Union soldiers and is “an independent news source that operates from inside the United States Department of Defense but is editorially separate from it.”

The Center report documents the medically inappropriate use of a dangerous pharmacological treatment on Guantánamo Bay detainees. Stars And Stripes writes

“The best I could say is that this is reckless disregard for the health of the detainees,” said Mark Denbeaux, an author of the university’s report and director of Seton Hall’s Center for Policy and Research. “They’re clearly not doing it for the health of the detainees, but for the health ofothers there.”

document Read the full Stars and Stripes article, Experts: DOD Malaria Drug Policy for Detainees is Malpractice, here

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Professor Stephen Lubben

Professor Stephen Lubben in the NY Times’ DealBook on “The New Complexity of Financial Resolution”

January 18, 2011

In his regular column in the NY Times’ DealBook, Professor Stephen Lubben discussed “The New Complexity of Financial Resolution,” and the difficulties presented by the fragmentation of insolvency law. Professor Lubben looks at the evolution of the law and suggests that such difficulties were exacerbated in recent years through legislation, and thenonly partially addressed thereafter through subsequent legislation. Professor Lubben writes:

But any inefficiencies that existed in this dual system in the 20th century were undoubtedly multiplied by the effective repeal in 1999 of the Glass-Steagall Act of 1933 and the subsequent creation of a kind of “universal banking” model in the United States.

Where once a financial institution might implicate two insolvency systems, before Dodd-Frank, new entities like Citgroup, Bank of America and JPMorgan Chase would have set off three or four insolvency procedures within the United States alone.

Given the competing goals of these procedures, creating a single forum for resolving a financial institution seemed like anatural goal of the Dodd-Frank legislation. But it was only partially achieved.

Dodd-Frank does include a new resolution authority, which allows the F.D.I.C. to deal with a broader array of financial institutions in the same way it has long dealt with insured banks. But broker-dealers remain partly outside this new process, while insurance companies are entirely outside. 

document Read the full NY Times' DealBook article, The New Complexity of Financial Resolution, here


Professor Mark Alexander

Professor Mark Alexander in the Washington Times on the New House Rule Requiring a Constitutional Citation for Bills

January 18, 2011

Professor Mark Alexander offered commentary in an article in the Washington Times regarding the impact of the new rule in the House of Representatives requiring new bills to cite to the constitutional power under which the proposed legislation derives legitimate authority.

The article featured differing views on separation of powers as regards the duty of constitutional interpretation, and The Washington Times noted:

Mark C. Alexander, a law professor at Seton Hall University, said the back-and-forth is a debate worth having, adding that lawmakers should ponder whether what they are doing is supported by the Constitution. But he said ultimately, Congress will have to defer to the courts' rulings.

"It's important to do that, to keep that debate going, but ultimately I think we have to recognize the court makes the decision as to whether something is or is not constitutional," he said. "If your point is, this is not constitutional, as a member of Congress it's actually not ultimately your decision. The courts have to decide it. That's their job."

document Read the full Washington Times article, House GOP spoils for Constitution fight, here.


Professor Margaret Lewis

Professor Margaret K. Lewis in the LA Times on China Detaining an American Businessman in a Contract Dispute

January 09, 2011

Professor Margaret Lewis offered comment and background analysis for an article in the Los Angeles Times regarding a case in which Chinese government officials prohibited an American businessman from leaving China because of what was said to be an unresolved contract dispute with a Chinese supplier.

The dispute involved the purchase from a Chinese supplier of gas powered blenders in 2007. The businessman, Brian Horowitz, said that the blenders, popular with tailgaters in the U.S., were not manufactured to U.S. air quality standards, which resulted in his company being fined $240,000 by the California Air Resources Board and being ordered to pull the blenders from store shelves. According to Horowitz, the Chinese supplier agreed to write off his balance of over $300,000 as resolution.

However, when Horowitz attempted to board a plane to return to the U.S. from China, he was detained and told that before being able to leave the country he would have to resolve his dispute with his former supplier by paying the amount of $250,000. The prohibition is said to have come as a shock to Horowitz, who said that “he was never served with a copy of the lawsuit and that he had traveled to China about 30 times in the last two years without incident.”

The LA Times writes:

Margaret K. Lewis, a law professor at Seton Hall University and a fellow with the National Committee on United States-China Relations, said Chinese law permits the government to deny exit to foreigners who have unresolved civil cases. But the law also requires that defendants be notified of lawsuits and allowed to present a defense. She said it would be unusual for a Chinese court to enforce a lawsuit against a U.S. defendant who had not been notified of the lawsuit.

“This case strikes me as extreme.” 

document Read the full Los Angelos Times article, China bars O.C. businessman from returning home, citing contract dispute, here.

CSJ, All Work and No Pay

CSJ Report on Day Laborer Wage Theft Featured in the New York Times and The Huffington Post, Forbes, BusinessWeek, CNBC, MSNBC, Star Ledger, The Record, Asbury Park Press, Daily Record, Home News & Tribune, El Diario, Nowy Dziennik, Univision TV & Radio.

January 09, 2011

A recent CSJ report, All Work and No Pay: Day Laborers, Wage Theft, and Workplace Justice in New Jersey, was featured by media sources throughout the state and country, including the New York Times, The Huffington Post, Forbes, BusinessWeek, CNBC, Star Ledger, The Record, Asbury Park Press, Daily Record, Home News & Tribune, Univision TV & Radio, El Diario, and Nowy Dziennik (Polish).

The report shows widespread wage theft and worker abuse throughout the state. In addition to articles on the report, both the Star Ledger and The Record ran editorials on the subject, citing CSJ’s report and calling for action to put an end to wage theft and abuse in New Jersey.

A sampling of the articles on the report can be found below, a link to the press release and the report itself below that:

document Read the full New York Times article, Study Finds Exploitation of Day Laborers, here

document Read the full Huffington Post article, New Study Uncovers Wage Theft and Workplace Abuse in the Garden State, here

document Read the full Star Ledger article, Study finds N.J. day laborers are victims of assault, wage theft, here

document Read the full Star Ledger editorial, Undocumented workers need protection from abuse, here

document Read the full The Record article, Kelly: Day labor abuses hurt all of us, here

document Read the full Asbury Park Press article, Seton Hall study shows abuse of day laborers: Wage theft, unsafe conditions, violence, here

document Read the full Forbes artcle, Survey: NJ day laborers victims of wage theft, here

document Read the full AFL-CIO article, Wage Theft: The Crime Wave Nobody Talks About, here

document Read the full ImmigrationProf Blog, Seton Hall Law Clinic Report -- All Work and No Pay: Day Laborers, Wage Theft, and Workplace Justice in New Jersey, here

document Read the full El Diario article, Informe revela abusos contra jornaleros en Nueva Jersey, here (Spanish)

document Read the full Nowy Dziennik article here (Polish) 

document Read the Seton Hall Law School press release and report here

Professor Stephen Lubben

Professor Stephen Lubben

Professor Stephen Lubben in the New York Times’ DealBook on Differences in American and British Bankruptcy Law Impacting Lehman Bros. and in the Green Bay Post-Crescent on the Implications of a Possible Diocesan Bankruptcy in Wisconsin

January 07, 2011

In the Green Bay Post-Crescent Professor Stephen Lubben provided analysis for an article regarding the possibility of bankruptcy for the Green Bay, Wisconsin diocese and the effect that might have for church affiliated organizations such as hospitals, schools and the local Catholic Charities organization. Professor Lubben noted the risks of litigation in such an instance. The Post-Crescent writes:

“If you push this and litigate, there’s obviously some risk that the court could rule against some of the parishes or some of the other related entities and drag more assets into the bankruptcy estate in a way that would have long-term consequences,” said Stephen Lubben, a professor at Seton Hall Law School in New Jersey and bankruptcy expert. “It’s usually best to try to work out some sort of reasonable settlement.”

In his regular column in the New York Time’s DealBook, Professor Lubben uses the Lehman Bros. bankruptcy to exemplify differences between the American and British systems of justice. In his column, “Lehman Shows Trans-Atlantic Divide on Derivatives,” Professor Lubben writes:

The Lehman Brothers bankruptcy case underscores that while the International Swaps and Derivatives Association, the derivatives industry trade group, provides a single master agreement for use in derivatives trades in the important New York and London markets, the interpretation of that agreement can vary greatly across those two jurisdictions.  

document Read the full New York Times DealBook article, Lehman Shows Trans-Atlantic Divide on Derivatives, here

documentRead the full Post-Crescent article here

Professor Mark Alexander in BusinessWeek

Professor Mark Alexander in BusinessWeek on the New Jersey Supreme Court Impasse and the School Budget Case

January 06, 2011

Professor Mark Alexander appeared in Bloomberg’s BusinessWeek to provide background analysis and comment on the current state of the New Jersey Supreme Court. The article considers the decision of Governor Chris Christie (’87) to break with long standing tradition and not reappoint Justice Wallace, as well as the recent decision of Justice Rivera-Soto to refuse to participate in court decisions. Justice Rivera-Soto premised his unprecedented abstention upon a law review article and op-ed by Seton Hall Law Professor Edward Hartnett which questions the constitutionality of the appointment power utilized by the Supreme Court’s Chief Justice to fill temporary vacancies on the bench.

Professor Alexander noted the deleterious repercussions of the impasse:

“The impasse has hurt the court’s public image. This definitely makes people think that politics is everywhere, including in the courts, and that’s not good. The courts deserve better than what’s happening right now.” 

document Read the full Bloomberg Businessweek article, New Jersey High Court Weighs School Cuts Amid Impasse, here

Kathleen M. Boozang

Interim Vice Provost and Professor Kathleen M. Boozang

Interim Vice Provost and Professor Kathleen M. Boozang in the Record, "Donate a Kidney and Get Out of Jail"

January 04, 2011

Interim Vice Provost and Professor Kathleen M. Boozang published an op-ed piece in the Record, New Jersey’s most awarded newspaper, regarding the release of Gladys Scott from prison on condition that she “donate” a kidney to her sister.

Professor Boozang writes:

“I can’t read another paean to Mississippi Gov. Haley Barbour for granting a release from imprisonment to Gladys Scott on condition that she “donate” a kidney to her sister. The Scott sisters were sentenced to life 16 years ago for an armed robbery that yielded them $11. The women will be eligible for parole in 2014.” 

document Read the full NorthJersey article, Opinion: Donate a Kidney and Get Out of Jail, here

Professor Mark Alexander

Professor Mark Alexander

Professor Edward Hartnett
Professor Edward Hartnett

Professors Edward Hartnett and Mark Alexander in the Philadelphia Inquirer on the Repercussions of NJ Supreme Court Justice Rivera-Soto’s Announcement that he Will Not Seek Reappointment to the Court

January 04, 2011

Professors Edward Harnett and Mark Alexander appeared in an article in the Philadelphia Inquirer regarding the recent announcement of New Jersey Supreme Court Justice Rivera-Soto that he will not seek reappointment to the Court when his term expires. Justice Rivera-Soto recently announced that he would no longer take part in decisions of the Court. Justice Rivera-Soto premised his unprecedented abstentions upon a law review article and op-ed by Seton Hall Law Professor Edward Hartnett which questions the constitutionality of the appointment power utilized by the Supreme Court’s Chief Justice to fill temporary vacancies on the bench.

The Philadelphis Inquirer writes:

The court will have a third vacancy in March 2012, when Justice Virginia Long reaches the mandatory retirement age of 70. Seton Hall University law professor Edward Hartnett noted the possibility of three simultaneous vacancies and confirmation proceedings at that time, and said the court could even have three temporary judges if there were further delays next year.

Hartnett's argument in a 2003 legal article that the chief justice does not have the authority to make appointments except when needed to compose a quorum of five justices helped form the basis for Rivera-Soto's written opinions that he should abstain because the court's current composition is unconstitutional.

While voicing concern that Christie would cede his appointment power to the chief justice, Hartnett said he saw little incentive for Sweeney to change his own position unless the senator would be less pleased with judges assigned by Rabner than those nominated by the governor.

Hartnett also said that Rivera-Soto's refusal to participate in cases was unproductive and that he ran the risk of the court's producing a different decision than it would have otherwise.

"I'm certainly pleased that people are taking my scholarship seriously; I'm less happy that it's led to this much dissension," Hartnett said.

Mark Alexander, another Seton Hall law professor, said Christie started the controversy by bucking the 60-year trend of both Democratic and Republican governors reappointing Supreme Court justices.

"That doesn't mean that Sweeney is right to do one thing, or Rivera-Soto is right to do another thing, but I think the problem started with one person . . . and now we're at a point where it's all messy."

Christie promised on the campaign trail to remake the top court and has asserted that no justice is guaranteed reappointment.

document Read the full Philly article, N.J. Justice Roberto Rivera-Soto says he will not seek reappointment, here

document Read the Seton Hall Law Highlight about Justice Rivera-Soto’s unprecedented abstention and Professor Hartnett’s constitutional legal theory upon which it is based, here

Professor Shavar Jeffries

Professor Shavar Jeffries

Professor Shavar Jeffries named by Politicker NJ as one of two “Rising Stars” in New Jersey Politics

January 01, 2011

In its year-end review, Politicker named Professor Shavar Jeffries as one of two rising stars in New Jersey Politics (one Democrat and one Republican). Politicker New Jersey writes:


Shavar Jeffries

The Seton Hall University Law Professor overwhelmingly won his Newark Public School Advisory Board seat and emerged as a strong educational leader with key power alliances. His peers immediately selected him to chair the board. With degrees from Duke University and Columbia Law School, Jeffries doesn’t lack educational credibility, and was a standout counsel for Anne Milgram at the state AG ’s Office. A native of Newark’s South Ward, he easily cultivates friendships among reps of all of the city’s balkanized groups. He is said to be politically ambitious and a potential future candidate for mayor. 

document Read the full PolitickerNJ full Year In Review here