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Media Archives - 2010   

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

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Professor Stephen Lubben

Professor Stephen Lubben

Professor Stephen Lubben in The New York Times’ DealBook on the Decline in Large Bankruptcy Filings in 2010 and Opening Bankruptcy Court to the States

December 27, 2010

Professor Stephen Lubben, who writes a regular feature column for the New York Times’ DealBook, recently published his thoughts on the decline in large (over $1 billion in assets) bankruptcy filings over the course of 2010.

Professor Lubben posits that the decline in large asset filings (15 in 2010 as opposed to 45 in 2009, but only 6 in 2007 ) can be attributed not only to the fact that “big Chapter 11 cases ebb and flow with the broader economy,” but also the “revitalization of the junk bond markets, which have allowed many distressed debtors to kick the can down the road until the next round of debt maturities.”

Professor Lubben cautions, however, “Whether this trend is stable over the long term is unclear, particularly in light of preliminary indications that interest rates may be on the upswing. If the junk bond markets close or, more realistically, cool down, Chapter 11 filings could pick up 12 months from now.” 

In a recent previous column in The Times, Professor Lubben examined the issues which might arise given the inapplicability of state sovereign immunity in the bankruptcy context. Professor Lubben suggests the possibility of amending “the Federal Bankruptcy Code to allow states to file for relief under Chapter 9, like municipalities, counties and other subsidiary governmental entities can already do. Even if states never filed under Chapter 9, such an amendment might be a good idea for a few reasons.”

Professor Lubben further suggests that although the need for such protection has not yet arisen, “Given the general political consensus against future bailouts, maybe, just maybe, this is something to think about. And better to do the thinking now, rather than when such a tool is actually needed, fast.”

document Read the full NY Times Dealbook article, Why Chapter 11 Cases Are Shrinking, here

document Read the full NY Times Dealbook article, Opening Bankruptcy Court to the States, here

Professor Edward Hartnett

Professor Edward Hartnett

Professor Edward Hartnett Authors Guest Column for the Star Ledger: “Seeking a path to restore order in the N.J. Supreme Court”

December 15, 2010

Professor Edward Hartnett wrote a feature guest column for the Star Ledger entitled “Seeking a path to restore order in the N.J. Supreme Court.” In the guest column Professor Hartnett addresses Governor Christie, state Senate President Steve Sweeney, and in turn, members of the Court regarding what has been termed a “constitutional crisis” and an “unprecedented controversy” in the seating of justices to New Jersey’s highest bench. Relying heavily on Professor Hartnett’s work, New Jersey Supreme Court Justice Rivera Soto has indicated that he will abstain from making further decisions because he deems the Court, due to a temporary appointment by Chief Justice Rabner, as improperly constituted.

In the article, Professor Hartnett remarks: “As the person whose scholarly work lies at the root of this dispute, I feel a responsibility to speak.”  

document Read the full Star Ledger Guest Column, Seeking a path to restore order in the N.J. Supreme Court, here

document Read the Seton Hall Law Highlight with more about the issue, with links to the Opinion in question, Professor Hartnett’s article in the Seton Hall Law Review, and an influential editorial he wrote on the subject in the New Jersey Law Journal

Professor Edward Hartnett

Professor Edward Hartnett

Professor Edward Hartnett featured in the Star Ledger Discussing the Process by which a Seton Hall Law Review Article Turns into a Constitutional Crisis in the Judiciary— and a Possible Remedy

December 14, 2010

Professor Edward Hartnett was featured in the Star Ledger by columnist Phil Mulshine on the impact and repercussions of a law review article he published in the Seton Hall Law Review in 2003, and which now sits at the heart of a constitutional controversy in New Jersey’s highest Court. Relying heavily on Professor Hartnett’s work, New Jersey Supreme Court Justice Rivera Soto has indicated that he will abstain from making further decisions because the Court, due to a temporary appointment by Chief Justice Rabner, is improperly constituted.

Mulshine writes,

Ed Hartnett never dreamed a mere law review article could lead to a controversy unprecedented in the history of the judiciary.

The article, which appeared in the Seton Hall Law Review in 2003, had the rather innocuous title, "Ties in the Supreme Court of New Jersey." In it, Hartnett discussed a number of issues related to tie-breaking on our high court, including the question of just when the state constitution permits the chief justice to elevate an appellate judge to the court.

Hartnett’s answer: "only when necessary to reach the required quorum of five." Since the court now has six of its seven seats filled, such an appointment appears to be impermissible, according to the argument Hartnett presented in that piece.

That argument languished in obscurity until it caught the eye of one of a certain Roberto Rivera-Soto. He happens to be one of those six justices — the one most likely to lose his seat in the near future. Rivera-Soto comes up for tenure on Sept. 1, seven years after he was named to the court by then-Gov. Jim McGreevey.

….Last week, Rivera-Soto created a constitutional crisis with a dissent in an otherwise routine decision. In it, Rivera-Soto declared that he will abstain from all decisions as long as Appellate Judge Edwin Stern sits on the high court. Chief Justice Stuart Rabner had named Stern to the vacancy created when Senate Democrats declined to grant a hearing to Anne Patterson, the Morris County lawyer whom Christie had named to replace Wallace.

Rabner can’t do that, wrote Rivera-Soto, citing Hartnett’s article as proof that the framers of the 1947 constitution did not intend to grant the chief justice such power.

"It’s an argument I made a long time ago that has gone from sleepy law review pages to the front pages of newspapers," said Hartnett when I called him yesterday.

In the article, entitled “In this schoolyard fight, Christie could have fun during recess,” Professor Hartnett points to a constitutional provision for the constitutional problem. Mulshine writes:

Hartnett has a solution: "The governor could make a recess appointment."

That power is in the state constitution, but our governors traditionally have not used it. But then, state Senate presidents have not traditionally declined to grant hearings to judicial nominees.

Recess appointments are standard practice on the national level. Just what constitutes a recess has always been hotly debated, but "Teddy Roosevelt made them during a single fall of the gavel," Harnett said.

"I don’t think he’d want to got that far," he said, of Christie. But if the man often accused of being a bully wants to emulate the man who had a bully pulpit, there’s no reason Christie couldn’t name Patterson to the court in the recess that occurs between the 2010 and 2011 legislative sessions, Hartnett said.

Since it seems to have been Hartnett’s writing that led to this impasse, I have to say it is particularly gracious of him to offer a way out.

I would urge the governor to take it.

MORE ON RECESS APPOINTMENTS: Here is the section of the state constitution that permits the governor to make recess appointments. Note the section I put in italics: 13. The Governor may fill any vacancy occurring in any office during a recess of the Legislature, appointment to which may be made by the Governor with the advice and consent of the Senate, or by the Legislature in joint meeting. An ad interim appointment so made shall expire at the end of the next regular session of the Senate, unless a successor shall be sooner appointed and qualify; and after the end of the session no ad interim appointment to the same office shall be made unless the Governor shall have submitted to the Senate a nomination to the office during the session and the Senate shall have adjourned without confirming or rejecting it. No person nominated for any office shall be eligible for an ad interim appointment to such office if the nomination shall have failed of confirmation by the Senate.

document Read the full Star Ledger article, In this schoolyard fight, Christie could have fun during recess, here

document Read Seton Hall Law Highlight with more about the matter, with links to the Opinion in question, Professor Hartnett’s article in the Seton Hall Law Review, and an influential editorial he wrote on the subject in the New Jersey Law Journal

Professor Mark Alexander in the Wall Street Journal

Professor Mark Alexander

Professor Mark Alexander in The Wall Street Journal on NJ Supreme Court Justice Rivera-Soto’s Abstentions

December 11, 2010

Professor Mark Alexander appeared in The Wall Street Journal regarding the abstentions from decision by New Jersey Supreme Court Justice Rivera-Soto. The justice, citing constitutional concerns regarding the propriety of Chief Justice Rabner’s temporary appointment power in instances in which a quorum of justices is already present, has indicated that because he believes the Court is unconstitutionally constituted at present due to such an appointment, he will continue to abstain from decisions in which the temporary justice takes part. For his New Jersey constitutional analysis, Justice Rivera-Soto relied heavily on the work and reasoning of Seton Hall Law faculty member, Professor Edward Hartnett. In an Op-ed piece in the Star Ledger, however, Professor Hartnett recently suggested to Justice Rivera-Soto that “There is no need to abstain from all decisions.”

Although Justice Rivera-Soto has received substantial support for his constitutional position (though not necessarily among his fellow members of the Court) Justice Rivera-Soto’s stated aim to further abstain from future decisions has evoked the ire of many, even prompting some to call for resignation or impeachment. After considering the prospect of such, The Wall Street Journal writes:

“Mark Alexander, a Seton Hall law professor who specializes in constitutional law and the intersection between law and politics, said the justice's decision to abstain from future rulings ‘raises significant concern about his conduct.’”

documentRead the full Wall Street Journal article, Justice Stymies New Jersey High Court, here

Professor Michael Simkovic

Professor Michael Simkovic in FoxBusiness on Campus Debit Cards

December 07, 2010

Professor Michael Simkovic appeared in a FoxBusiness article regarding the use of campus debit cards; many colleges have contracted with third party firms to issue these cards to students as a means of eliminating paper checks for scholarship, financial aid or work-study funds. Professor Simkovic noted that

“For many colleges, outsourcing the financial aid distribution function to a company that focuses on this process and is large enough to invest in technology that can streamline the system leads to efficiency gains.”

Some card providers, however, have been criticized for fees charged to students associated with the use (or in some instances, non-use) of such accounts. FoxBusiness writes,

“These card fees have prompted student protests and can range from debit transaction charges, deposit fees, "abandoned account" fees, ATM fees, overdraft fees and ‘convenience’ fees,” and further describes a practice of Higher One, a card issuer which is said to “possesses a large market share for student debit cards on college campuses,” and “works with more than 5.3 million students at colleges and universities across the country.”

Fox writes:

Although the Higher One cards are debit cards, students who completed their purchases as debit transactions (which requires entering your personal identification number or PIN) were charged 50 cents each time. To avoid this, Higher One suggests on its website that account holders "choose credit and sign the receipt to avoid the PIN fee."

One explanation to account for asking students to choose credit over debit, says Seton Hall University's Simkovic, is that card issuers earn more on interchange fees (or "swipe" fees) from credit transactions than they do from debit transactions. According to a 2009 report from the U.S. Government Accountability Office, "debit card interchange fees generally are lower than those for credit cards." The 50 cent fee, then, would generate revenue that would have been "lost" if the transaction had not been a credit transaction.

document Read the full Fox Business article, Debit Cards on Campus: Convenient or A Curse?, here


Professor Hafetz

Professor Jonathan Hafetz in Deutsche Welle’s World on WikiLeaks as Espionage Against U.S.

December 02, 2010

Professor Jonathan Hafetz appeared in Deutsche Welle’s World on the prospect of espionage charges being prosecuted against WikiLeaks founder Julian Assange. Deutsche Welle (“German Wave”) 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.

The Deutsche Well article notes that although Interpol recently issued an alert calling for the arrest of WikiLeaks founder Julian Assange in connection with alleged sex offenses in Sweden, U.S. officials are mulling over ways in which to prosecute Mr. Assange in connection with the recent publication of a trove of classified documents. Deutsche Well reports that

“Congressman Peter King, the incoming chairman of the influential Homeland Security Committee, went so far as to ask Secretary of State Hillary Clinton to investigate whether WikiLeaks could be designated a foreign terrorist organization (FTO), a move that would give US authorities greater leeway in going after the group. However, legal experts interviewed by Deutsche Welle, don't believe this will be possible under US law.”

Professor Hafetz also considered the possibility of prosecution under the Espionage Act of 1917, and although he thought it more likely as a vehicle for prosecution, unlike the other expert queried who thought Mr. Assange was “vulnerable under the Act,” Professor Hafetz was skeptical as to its ultimate applicability. Deutsche Welle reports,

“The more likely legal basis for the US government to prosecute Assange, argue Hafetz and Banks, would be the so-called Espionage Act of 1917. Under the law, explains Banks, the US would have to prove three things: One, that he had unauthorized possession of information related to national security; two that he could bring harm to the US or aid an enemy; and three that he had willfully kept that information after the US demanded that he return it.”

And noting Professor Hafetz’ skepticism as to government success under the statute:

“‘There are a couple of potential obstacles there. The government would have to show that there was harm to national security which could force the government to divulge classified information.’ What's more, adds Hafetz, trying WikiLeaks under the Espionage Act poses some ‘potentially very significant first amendment issues if WikiLeaks is defined as a media organization like a newspaper.’ The first amendment to the US Constitution guarantees freedom of speech and the freedom of the press.

First amendment issues

‘I think there are some real first amendment and freedom of speech consequences and problems trying to prosecute WikiLeaks for publishing information,’ says Hafetz. ‘In fact, it's hard to draw the line. Why would they then not prosecute the New York Times or the other newspapers?’…. Trying to prevent leaks from happening in the first place is really what the US government should focus its energy on now, adds Hafetz.

‘At the end of the day, even if WikiLeaks is prosecuted, it doesn't stop another organization from potentially publishing other documents.’"

documentRead the full DW Akademie article, US could prosecute Assange for espionage, say legal experts, here

Professor Stephen Lubben

Professor Stephen Lubben

Professor Stephen Lubben in Reuters, CNBC, on MGM Bankruptcy

December 02, 2010

Professor Stephen Lubben appeared in a Reuters report on the bankruptcy of the famed Hollywood media giant, Metro-Goldywyn-Mayer Studios.

The restructuring plan for the company was approved by U.S. Bankruptcy Judge Stuart Bernstein in Manhattan, a mere 29 days after filing a prepackaged bankruptcy plan. The restructure is said to allow MGM to shed nearly $5 billion in debt and position it favorably for what are believed to be a number of lucrative movie deals.

Reuters reported,

“Getting through the court process in 29 days is about as short a time as possible these days, according to one professor. That quick time in court can remove the stigma that bankruptcy often carries, he said.

‘You can move on with your life without the court looking over your shoulder and return to life as business as usual,’ said Stephen Lubben, a professor at Seton Hall University School of Law in Newark, New Jersey.

document Read the full CNBC article, MGM Studios Bankruptcy Plan Wins Judge's Approval, here

document Read the full New York Times, DealBook article, MGM's Challenge in a Prepackaged Bankruptcy, here

The case is In re: Metro-Goldwyn-Mayer Studios Inc, U.S. Bankruptcy Court, Southern District of New York, No. 10-15774.

lubben_stephen 125x156

Professor Lubben

Professor Stephen Lubben in The New York Times’ Dealbook and The Wall Street Journal's Bankruptcy Beat on the Favored Tax Treatment of General Motors in Bankruptcy

November 16, 2010

Professor Stephen Lubben, who writes a weekly column for the New York Times’ Dealbook, wrote a follow-up of sorts to his recent presentation at a conference at Stanford Law School. Professor Lubben notes that General Motors, which sold its assets in “the old G.M.” through Section 363, received an anomalous tax treatment from the Treasury Department which allowed the tax losses of the “the old G.M.” to carry forward to “the new G.M.” Professor Lubben writes:

“Normally tax losses stay with a company that reorganizes in Chapter 11 — not one that sells its assets under Section 363. Even then, the tax losses are preserved only if the equity in a reorganized company goes to creditors who are “old and cold,” meaning those that have been in place for at least 18 months…. It turns out, however, that the Treasury simply exempted itself through regulatory actions from the latter requirements….

The benefactors of this special tax treatment are the shareholders of the new G.M., who received stock in a more valuable company.”

document Read the full New York Times article, For Treasury, a Hidden Cost for Helping G.M., here

document Read the full Wall Street Journal's article, The Daily Docket: Lipstick Building Enters Bankruptcy, here

healy_thomas 125x156

Professor Healy

Professor Thomas Healy on Fox TV News regarding the California Video Game Violence Case

November 15, 2010

Professor Thomas Healy appeared on Fox TV News as part of a feature regarding video game violence and regulation. California had sought to ban minors from purchasing certain videos. The ban was overturned by the 9th Circuit. Professor Healy, who was present for oral arguments in the case, Schwarzenegger v. Entertainment Merchants Assn., before the U.S. Supreme Court on appeal, described the hearing and recounted that a number of Justices expressed the view that although this country has a long tradition of suppressing sexual expression, we do not have “any sort of tradition suppressing violent expression.” Professor Healy believes that the Supreme Court will ultimately find California’s ban to be violative of the First Amendment.

video Watch the full Fox news video here


Interim Vice Provost and Professor Kathleen M. Boozang

Interim Vice Provost and Professor Kathleen M. Boozang In the Star Ledger Regarding Conflicts of Interest in Pharma Payments to Physicians

November 08, 2010

Interim Vice Provost and Professor Kathleen M. Boozang appeared in the Star Ledger regarding the ramifications of Pharma payments totaling millions of dollars to physicians in New Jersey. The article was prompted by a Pro Publica database which has compiled information from court documents detailing payments by six pharmaceutical companies to physicians, as well as the voluntary disclosure of two quarters of such payment information by Merck. The database tracks these payments for the period between January, 2009 and June 2010; it is sortable by state and amount.

Within the above named limitations, seven New Jersey doctors received more than $100,000 during the timeframe shown, from the pharmaceutical companies named.

In addition, The Ledger reports:

Overall, seven pharmaceutical companies wrote 1,215 checks totaling $8.3 million to doctors in New Jersey, the 10th highest total in the nation, according to ProPublica.

Doctors nationwide earned $258.7 million for speaking and consulting, according to information culled from court documents involving six companies and records from Whitehouse Station-based Merck, which voluntarily disclosed two quarters of payment information. And that’s just a taste of the $1.2 billion doctors earn on the speaking circuit annually, according to a 2008 article in the Journal of the American Medical Association….

Kathleen M. Boozang, law professor at Seton Hall University’s Center for Health & Pharmaceutical Law and Policy, said new requirements to publicly disclose how much doctors are paid by drug companies aren’t enough to protect patients, noting many won’t look up their doctor on databases.

Boozang said while doctors may be in the best position to teach each other how to make decisions about which drugs or devices should be used, drug companies shouldn’t be paying them.

The center last year issued a report calling for an end to "commercial support for continuing medical education," suggesting medical schools and physician associations should take over the role of educating doctors. "We have blurred the line between promotion and education," Boozang said. "It shouldn’t be the obligation of patients to protect themselves from conflicts of interest."

document Read the full Star Ledger article, Drug companies paid N.J. doctors millions to promote their products, here


Professor Hafetz

Professor Jonathan Hafetz and The Center for Policy & Research in the New York Times Regarding the Audio and Video Recordings of Guantanamo Detainees

October 13, 2010

Professor Jonathan Hafetz appeared in the New York Times regarding recent disclosures that recordings of detainee interactions in Guantanamo exist and were, in fact, recently used in the trial of Ahmed Khalfan Ghailani, the former Guantanamo detainee now on trial in Federal District Court in Manhattan.

The Times reports that transcripts of the classified recordings, in which Mr. Ghailani is said to be speaking with another detainee, were used by a court-appointed psychiatrist to assess the detainee’s competency.

And notes that

“… the existence of the recordings, which have been briefly cited in public court documents, suggests that the government has had another source of intelligence about detainees and could someday face the issue of whether such statements could be useful in a civilian court.”

Making note of the Center for Policy & Research report which used the government’s own documents to show that interrogations of detainees in Guantanamo had been videotaped, the Times further reports that

Jonathan Hafetz, a national security law expert at Seton Hall University, said Mr. Ghailani’s case “shows the variety of different purposes for which recordings might be used” in civilian court. It is not known how many other detainees’ conversations have been recorded in the same manner.

It is known, though, that much activity at Guantánamo has been under surveillance. The government said in 2008, for example, that guards used round-the-clock video recording to “ensure good order and discipline” at the facility. And a 2008 report by the Center for Policy and Research at Seton Hall Law School, called “Captured on Tape,” said all interrogations conducted at Guantánamo since 2002 had been videotaped.

document Read the full New York Times article about Ahmed Khalfan Ghailani, here

document Read the New York Times article about Seton Hall University, here

document Read more Seton Hall Law School Guantanamo reports here

Linda Fisher

Professor Linda Fisher

Professor Linda Fisher in ABC News on the Investigation of Florida’s “Foreclosure King” for Questionable Practices

October 12, 2010

Professor Linda Fisher was quoted by ABC News in reference to the investigation of multimillionaire foreclosure attorney, David Stern for what have been termed “questionable practices.

ABC News noted:

"He is notorious in Florida and, in the rest of the country, we pay some attention to Florida because the worst behavior often emanates from there," said Linda Fisher, a professor and mortgage-fraud expert at Seton Hall University's law school. She said she had no direct knowledge of the Stern's practices. "I've heard some pretty bad stories about Stern for at least the last couple of years or so."

According to ABC News, a former Stern paralegal came forward to the attorney general in a sworn statement and

“has told state investigators that the firm routinely signed court paperwork without reading it, misdated records, forged signatures and passed around notary stamps in the rush to foreclose on homes.”

And that

“Notary stamps were always available, and employees such as Kapusta, who were not notaries, routinely used them on official documents, she said. Those who could best fake the signature of the person who verified foreclosure affidavits were allegedly sought out to forge her name.”

Regarding the firms which have come to be known as foreclosure mills, Professor Fisher remarked

"If you focus on the way these businesses operate, it's, at best, sloppy and, at worst, fraudulent. The whole system was broken down."

document Read the full ABC News article, Florida's Foreclosure King Investigated For Questionable Practices, here

Linda Fisher

Professor Linda Fisher

Jenny-Brooke Condon
Professor Jenny-Brooke Condon

CSJ Professors Linda Fisher and Jenny-Brooke Condon Featured in The Record on Gun Control

October 10, 2010

Professors Linda Fisher and Jenny-Brooke Condon wrote a featured Op-ed in The Record regarding New Jersey’s gun control laws and proposed legislation which would make it easier for gun owners in the state to conceal and carry their weapons in public.  

document Read the full The Record article, Opinion: Don’t touch gun-carry permit law, here

Professor Mark Denbeaux

Professor Mark Denbeaux

Professor Jonathan Hafetz
Professor Jonathan Hafetz

The New York Review of Books has featured the book, The Guantanamo Lawyers, Inside a Prison Outside the Law (NYU Press). 

October 01, 2010

The New York Review of Books has featured the book, The Guantanamo Lawyers, Inside a Prison Outside the Law (NYU Press). Co-edited by Professors Mark Denbeaux and Jonathan Hafetz, The Guantanamo Lawyers contains over 100 personal narratives from attorneys who have represented detainees held at “GTMO” as well as at other “black sites” such as Bagram Air Base in Afghanistan.

The New York Review of Books:

The Guantánamo Lawyers: Inside a Prison Outside the Law, a collective account by the lawyers who have volunteered to represent the island’s prisoners, provides an invaluable perspective—or more accurately, perspectives, since more than one hundred lawyers contributed to the volume. These men and women, all working for nothing, have gained intimate access to those whom the United States sought to keep hidden behind strictly closed doors. The significance of what they have learned is reflected in how the United States treats them….

The stories these lawyers have been able to tell, adroitly edited by Mark Denbeaux and Jonathan Hafetz, offer a multifaceted portrait of life on the base. Sometimes they read as farce. Clive Stafford Smith, a British lawyer who has represented many detainees, was accused by a Guantánamo commander of smuggling “Under Armor briefs”—i.e., underpants—and a Speedo swimsuit to two of his clients….

Professor Denbeaux is the Director, and Professor Hafetz is a Faculty Fellow, of Seton Hall Law’s Center for Policy & Research. The Center has produced the renowned series of “Guantanamo Reports.” The reports have been introduced into the Congressional record by the Senate Armed Services Committee, the Senate Judiciary Committee, the House Armed Services Committee, and as part of a Resolution by the European Parliament.

The Center’s most recent reports, regarding the alleged suicide of three detainees in GTMO, was the foundation and basis for Scott Horton’s feature expose in Harper’s Magazine.

document Read the full New York Review of Books article, What to Do About Guantanamo?, here


Professor David Opderbeck

Professor David Opderbeck in the Daily Record Regarding Patent Expiration, “Wrong Marking,” in Brooks Brothers Bowtie Suit

September 29, 2010

Professor David Opderbeck was featured in a Daily Record article regarding a patent expiration, "wrong marking," suit filed by a New Jersey attorney against Brooks Brothers. The suit alleges that Brooks Brothers made available for sale bow ties which falsely maintained that the bow ties (or more precisely, the adjustolox system thereon) were patent protected. The bow ties in question had patent numbers embroidered on them; the patents, however, had expired in the 1950s.

The New Jersey attorney, Ray Stauffer, brought suit which was dismissed by the U.S. District Court for the Southern District of New York on standing grounds; Stauffer, however, appealed and won—so the suit is going forward. If Brooks Brothers is ultimately fined for false marking, Stauffer will receive half of the money, the U.S. government the other half.

The article notes that

“The ruling, combined with another ruling on a separate case where a court in December found companies could be assessed a penalty of up to $500 per incorrectly marked item, rather than treating all the false markings as a single $500 maximum offense, has companies worried.”

And that

"These two federal cases put a defendant like Brooks Brothers in a bit of a bind," said David Opderbeck, an associate professor of law and director of Gibbons Institute of Law, Science &

Technology at Seton Hall University School of Law in Newark. He said he expects many of the cases will be settled out of court.

Opderbeck said the issue eventually could be affected by patent reform legislation, but there's no telling when such legislation might pass.

Explaining the justification for the cause of action, the article noted:

"If a product does have a marking, it may deter you from entering that market," Opderbeck said. Entrepreneurs might have to invest additional time and expense to see when a patent expires….

But Opderbeck said he doesn't see false markings as causing much harm to the economy. "Not something that would justify millions of dollars in fines," he said.

He said some products are made from molds that include patent numbers, and there's expense and effort involved in changing the molds to take off the markings. Before the ruling in December, for many companies it probably was cheaper for companies to pay the $500 fine rather than reworking their molds.

"Even a dollar an item is a pretty big expense for something that, in my view, doesn't really cause very much harm to the economy," he said.

document Read the full Daily Record article, Chatham, NJ, Attorney Suing Brooks Brothers Over Expired Bowtie Patent, here


Professor Paula Franzese In a featured Op-ed in the Star Ledger and in The Philadelphia Inquirer on a “Disclosure Loophole” in New Jersey’s Ethics Laws

September 24, 2010

Professor Paula Franzese appeared in a featured Op-ed in the Star Ledger entitled “Hopeful signs of good government in New Jersey,” and in an article in The Philadelphia Inquirer regarding what has been termed a “disclosure loophole” in New Jersey’s ethics laws. In the Star Ledger Op-ed, Professor Franzese writes:

It is time to tell the best kept secret in New Jersey politics: The preponderance of public servants are high-minded and hard-working individuals, endeavoring to do the right thing in difficult circumstances. I make this representation having spent the last decade-and-a-half immersed in the task of ethics reform, first as commissioner and vice-chair of the Election Law Enforcement Commission, then as special ethics counsel to Gov. Richard Codey, and for the past four years as chair of the State Ethics Commission, a powerful body that has accomplished significant good.

Having said that, in The Philadelphia Inquirer Professor Franzese also points to more that needs to be done, commenting in an article regarding the indictment of former New Jersey Sen. Wayne Bryant for $192,000 in retainer fees paid to Bryant’s firm which are alleged to have been bribes. The article relates that because the monies were paid to Bryant’s firm, he was not obligated to disclose such payments. The article notes:

Some experts say the Bryant example makes a good case for stronger disclosure rules. "There has to be a mandate whereby public officials disclose the names of clients who may be benefiting from any legislation," said Paula Franzese, a Seton Hall Law School professor who has led ethics initiatives on behalf of three New Jersey governors. "A case like this, which is, as alleged, so deplorable a violation of the public trust, makes plain the need for enhanced transparency. "It's clear that sunlight is the best disinfectant, and to see that public office is being used for secretive, privatized gain is precisely the sort of abuse that enhanced disclosure would seek to prevent."

document Read the full Star Ledger Op-ed, Hopeful signs of good government in New Jersey, here

document Read the full Philadelphia Inquirer article, Bryant indictment highlights loophole in N.J. ethics law, here

Professor Shavar Jeffries

Professor Shavar Jeffries

Professor Shavar Jeffries, president of the Advisory School Board in Newark, was featured in both the Wall St. Journal and the Star Ledger regarding Facebook founder, Mark Zuckerberg’s $100 million challenge grant donation to Newark’s schools

September 24, 2010

Professor Shavar Jeffries, president of the Advisory School Board in Newark, was featured in both the Wall St. Journal and the Star Ledger regarding Facebook founder, Mark Zuckerberg’s $100 million challenge grant donation to Newark’s schools.

In the Wall St. Journal, the article noted that the $100 million matching grant announced on Oprah with Mayor Cory Booker and Governor Chris Christie, ’87 in attendance, presents both opportunity and challenge to a school district besieged by what are said by many to be infrastructural deficiencies:

But the mayor and Gov. Chris Christie, who controls Newark schools, face an uphill battle in transforming the money into long-lasting change….

At $22,000 for each of its 40,000 students, Newark already spends more than most other cities, but only about half its students graduating. "Resources are always helpful, we obviously welcome it," said Shavar Jeffries, president of the advisory school board in Newark. However, "I don't think money is our primary problem," said Mr. Jeffries, a professor at Seton Hall Law School and a founder of a Newark charter school. The problem is "the civil-service bureaucracy that is not performance-based." Mr. Shavar favors an evaluation system based, in part, on teachers' ability to have students show progress on standardized tests.

Indeed, the barriers to some of the practices Messrs. Jeffries and Booker favor are rooted in state law. "Not very much can change until we change laws," said Jeanne Allen, president of the Center for Education Reform, a Washington-based group often at odds with teachers' unions.

In the Star Ledger, Editorial Page editor Tom Moran wrote:

Shavar Jeffries is one of those miracles you can point to when people ask if the American Dream is still alive.

He grew up poor in Newark, raised by a single mother until she was murdered when he was 10 years old. His grandmother took over, and he later won scholarships to Duke and Columbia Law School.

In April this year, he shocked the city’s political establishment with an overwhelming win that made him president of the city’s school advisory board, in an election that doubled previous turnout.

This guy, in other words, is worth listening to when it comes to the $100 million challenge grant that Newark schools just received.

“It’s tremendous, and the mayor and the governor should be applauded,” he says. “But I don’t think money is our primary problem.”

Newark spends nearly $1 billion a year, roughly $24,000 per kid if you play games to keep the number low.

The real challenge, Jeffries says, is to change the rules of the game. Bad teachers must go. Good teachers must be rewarded with raises. The best schools should be expanded, and the worst shut down. In all things, the focus must be on student performance.

To make those changes — and to make them stick — you need to convince people in Newark that it’s time.

“If the community does not support it, it can’t be sustained,” he says. “It’s really that simple. It can’t just be a handful of elected leaders supported by national investors.”

document Read the full Wall St. Journal article, Newark's $100 Million Question, here

document Read the full Star Ledger article, Tom Moran: Public Support is Integral to Newark School Reform, here


Reverend Jesse Jackson - Third National People of Color Legal Scholarship Conference

Professor Solangel Maldonado

People of Color Legal Scholarship Conference, Rev. Jesse Jackson, Cory Booker, Professors Derek Bell and Solangel Maldonado in Diverse Magazine

September 16, 2010

Diverse Magazine published a feature story on the Third National People of Color Legal Scholarship Conference held here at Seton Hall Law September 9th through the 12th. The conference theme, “Our Country, Our World in a ‘Post-Racial’ Era,” was discussed throughout the weekend as various aspects of the issues of race, ethnicity, gender, sexuality and disability were considered from legal, policy and sociological perspectives. Over 400 professors, lawyers, judges and students took part in the conference.

document Read the full Diverse Issues In Higher Education article, Rev. Jackson Debunks 'Post-Racial' Idea at Minority Legal Scholar Conference,  here.


Professor Edward Hartnett

Professor Edward Hartnett in the New Jersey Law Journal in Two Articles and an Op-ed Piece Regarding the Constitutionality of Vacant Seat Supreme Court Appointments in New Jersey

September 10, 2010

Professor Edward Hartnett appeared in the New Jersey Law Journal in three separate articles regarding the constitutionality (or lack thereof) of vacant seat appointments to the New Jersey Supreme Court.

On the heels of the decision of Governor Chris Christie to not reappoint Justice John Wallace, Jr. to New Jersey’s highest bench, the controversy has continued as Chief Justice Stuart Rabner recently appointed Edwin Stern, the Appellate Division's ranking judge, to fill Justice Wallace’s vacant Supreme Court seat.

The New Jersey Law Journal reports that “Chief Justice Stuart Rabner on Wednesday assigned Stern to the Court effective Sept. 8 and ‘until further Order, to participate in new matters presented for the Court's consideration.’

The move, which plugs a vacancy that began May 20, when Wallace's initial seven-year term ended, comes just days before the opening of the Court's 2010-11 term.”

Justice Wallace, despite having not been reappointed, had continued to hear cases after being “recalled” by Justice Rabner “for the limited purpose of participating in the final disposition of appeals argued or submitted" before the end of Wallace’s term.

 The New Jersey Law Journal article reporting the temporary ascension of Judge Stern to the New Jersey Supreme Court also noted that

Two professors who teach constitutional law at New Jersey law schools — Edward Hartnett of Seton Hall and Earl Maltz of Rutgers-Camden — have expressed doubts about whether the chief justice has constitutional authority to fill a Court seat on a temporary basis for any reason other than to make up a quorum. Their qualms are based on the fact that the sentence allowing such assignments follows directly after one that states the five-member quorum requirement.

Professor Hartnett’s misgivings about the constitutionality of such assignments, were further noted in a prior NJLJ article, “Constitution, Rules in Conflict Over Way To Temporarily Fill Court Seat.” The article states:

“Seton Hall Law School Professor Edward Hartnett, who teaches constitutional law, says that the rule, which would appear to allow Chief Justice Stuart Rabner to name a interim justice, is not valid because it goes beyond what the Constitution allows.

Instead, it is Gov. Chris Christie who has the constitutional power to fill the seat temporarily through a recess appointment, says Hartnett.”

And that:

Hartnett's opinion that the Constitution does not allow Rabner to plug the vacancy is based in part on the history of the relevant provision, Art. VI, sec. 2, para. 1.

Adopted in 1947, it reads: "Five members of the court shall constitute a quorum. When necessary, the Chief Justice shall assign the Judge or Judges of the Superior Court, senior in service, as provided by rules of the Supreme Court, to serve temporarily in the Supreme Court."

As originally drafted, the paragraph specifically referred to using the power when necessary to make a quorum, and the paring of the quorum reference from the final version was a stylistic change, Hartnett says.

He also finds support in the evolution of R. 2:13-2, pointing out that the language about replacing absent justices and expediting Court business was not added until 1967, and the provision allowing appointment of retired justices did not appear until 1978.

Hartnett is not the only one who doubts Rabner's authority to assign an interim justice.

Earl Maltz, a constitutional law professor at Rutgers Law School-Camden, agrees, based on the language of Article VI. It "doesn't say if the seat is vacant for a while that the Chief Justice can appoint someone," he notes.

To allow temporary assignments for nonquorum purposes, such as expediting Court business as the rule states, would give the chief justice "unfettered authority," adds Maltz.

In his Op-ed on the subject, “Conventional Wisdom Is Wrong on N.J. Supreme Court Appointments,” Professor Hartnett further explains:

Court Rule 2:13-2 purports to give the chief justice the power to temporarily assign an Appellate Division judge or a retired justice in order to "expedite the business of the court." But the rule claims more power than the Constitution authorizes. Art. VI, sec. 2, para. 1 states, "Five members of the court shall constitute a quorum. When necessary, the Chief Justice shall assign the Judge or Judges of the Superior Court, senior in service … to serve temporarily in the Supreme Court." The text, its context and its implementation for the first two decades of practice under the 1947 Constitution demonstrate that this assignment power is available only when the Court would otherwise lack a quorum and that only Superior Court judges may be assigned.

Although the chief justice may not bring the Court to seven members, the governor may. Art. V, sec. 1, para. 13 of the Constitution empowers the governor to "fill any vacancy occurring in any office during a recess of the Legislature, appointment to which may be made by the Governor with the advice and consent of the Senate." Such an "ad interim appointment" expires at the end of the next regular session of the Senate or when a confirmed successor takes office, whichever occurs first.

This provision is modeled on a similar provision of the U.S. Constitution, and presidents have regularly used their power to make recess appointments, as Barack Obama did while the Senate took a recess over the July 4th holiday.

document Read the full New Jersey law Journal Op-ed, Wisdom Is Wrong on N.J. Supreme Court Appointments, here (subscription required)

document Read the full New Jersey Law Journal article, Constitution, Rules in Conflict Over Way To Temporarily Fill Court Seat, here (subscription required) 

document Read the full New Jersey Law Journal article, Top Appeals Court Judge Stern To Fill Justice Wallace's Seat Temporarily, here

Stephen Lubben

Professor Stephen Lubben

Professor Stephen Lubben in Magazine on Bankruptcy Costs and Fees as Lehman Bros. Expected to Hit $2 Billion

September 09, 2010

CNN Magazine quoted from Professor Stephen Lubben’s American Bankruptcy Law Journal article, “Corporate Reorganization & Professional Fees,” in a recent feature on the escalating costs of attorney and other professional fees associated with corporate bankruptcies.

The article reports that the lead attorney in the Lehman Brothers bankruptcy recently told Congress that “the final bill to unwind its sprawling claims would likely hit $2 billion and take two more years to settle.”

The article notes that “data indicates only about 1% of all fee requests are cut down and that such fees increased at a rate greater than 10% per year between 1998 and 2007 -- more than twice the rate of inflation.”

Amidst generalized calls to reign in the “excessive,” the article notes:

However, it can often be hard to say which bankruptcy fees are truly excessive. As Professor Stephen J. Lubben, a bankruptcy expert at Seton Hall University's School of Law, noted in one of his own studies, "the idea of professionals receiving millions from a company that is ostensibly 'broke' strikes more than a few as peculiar, or worse," but deciding "exactly how much it should cost to reorganize a corporate entity is a matter of surprising elusiveness."

In the end, he says, the excessive Chapter 11 cost, "like pornography, is recognized by whatever shocks a particular commentator."

document Read the full CNN Money article, Corporate bankruptcy: Costly and often worthless, here


Professor Adam Steinman

Professor Adam Steinman in MSNBC, The Vancouver Sun, The Times of India’s Economic Times, and Australia’s Sydney Morning Herald in Regard to Procedural Tactics Employed in Facebook Case

September 09, 2010

Professor Adam Steinman appeared in media sources throughout the world regarding procedural tactics in the Facebook ownership case which presently sits in U.S. District Court, Western District of New York. The case had previously been removed from state court by defendant, Facebook, Inc. CEO, Mark Zuckerberg , under federal diversity jurisdiction. The plaintiff, who claims to have received through contract 84% of Facebook ownership from Zuckerberg, is attempting to bring the case back to state court under claim that Zuckerberg, like plaintiff, is a New York resident—thus spoiling diversity under Sect. 1332.

Reuters noted that

"The higher the stakes, the more likely you want to take advantage of procedural moves to improve your chances of winning, or settling on the most favorable terms," said Adam Steinman, a professor at Seton Hall University School of Law in Newark, New Jersey.

Steinman said "conventional wisdom" is often that defendants prefer federal court to state court, because cases might be dismissed faster or less likely to reach juries. "There could also be a 'home-field' advantage if a state judge were more sympathetic to a local plaintiff," he said.

document Read the full Sydney Morning Herald article, Facebook CEO wants private life kept out of ownership challenge, here


Professor Mark Alexander on NPR’s Brian Lehrer Show & the Inaugural Edition of WNYC’s Politics Blog

September 08, 2010

Professor Mark Alexander, former Senior Advisor to the Barack Obama presidential campaign, appeared on Brian Lehrer’s radio show to talk about the economics and politics of presidential proposals to stimulate the economy, and in the WNYC blog, “It’s a Free Country,” writing about “What’s broken in politics and how do we fix it?”

On the Brian Lehrer show, Professor Alexander noted that for the 2010 mid-term elections the economy would play an important part: “…the economy plays out in such a huge way—in all elections. The most famous one was in the first Clinton campaign, saying “It’s the economy stupid.” In a stable economy voters feel better about sending incumbents back— and if it’s less stable, I think it’s a lot harder for those in power.”

In “It’s a Free Country, Professor Alexander took issue with the premise of the question posed by the blog, “What’s broken in politics and how do we fix it?” Professor Alexander noted that although “Politics can be messy. Politics can be unpredictable. And so it is right now,” and that “we are running through a messier-than-usual period,” there was a distinction to be made between the course of politics and the responsibility for governance. He wrote:

Politics is one thing, but having an impact through actual governance is another. That's where the problem lies.

The nature of change in a representative democracy requires cooperation. The ways of Washington at present seem to be heavily influenced by the politics of obstructionism, often masked as grassroots populism. From my perspective outside Washington, there does not seem to be consensus on the importance of cooperation and just getting things done. It looks like everyone wants to fight for political gain.

icon_listenListen to the full Brian Lehrer interview on WYNC, AG Democrats Debate, here

document Read the full WYNC blog post, Obama Advisor on Campaign-to-Governing Shift, here

Cybersecurity Law Project

Cybersecurity Law Project

The Cybersecurity Project of the Gibbons Institute of Law, Science & Technolgy was featured in the New Jersey Law Journal and The Record

September 01, 2010

Computer or “cyber” crime and “cyber” terrorism have quickly become acknowledged as major threats to business, individual safety and national security. The U.S. Senate Committee on Homeland Security and Government Affairs recently reported that the Executive Branch agencies and the Congress alone are now under cyber attack an average of 1.8 billion times per month and that cyber crime costs our national economy billions of dollars annually.

Citing the need for lawyers and law enforcement professionals to keep pace with the increased prevalence and sophistication of cybercrime, the Bergen County Prosecutor’s Office has partnered with Seton Hall Law School’s Gibbons Institute of Law, Science & Technology and Rutgers School of Law–Newark to bring specialized training in cybersecurity to both law students and practicing attorneys. The initial offering of the partnership, a thirteen week course on Cybersecurity Law held at Seton Hall Law School and taught by Gibbons Institute Director, Professor David Opderbeck, was made available to both Seton Hall and Rutgers–Newark students as well as prosecutors throughout the state and agents of the New Jersey Office of Homeland Security. Twenty prosecutors and agents signed up for the course—free of charge. Rutgers–Newark Law School will offer a seminar on Cybercrimes in Spring 2011, while Seton Hall Law will offer a course on Computer Crimes Practice at that time.

Bergen County Prosecutor John Molinelli stated: “Cybercrime is a local, national and international problem of the first priority. Damages amount to billions of dollars, threatening national and state security with economic and terroristic threats to medical and personal privacy, and predation upon the young and defenseless. We need to work together to ensure the collective safety and privacy of our citizens—and to assure the continued expertise of our security professionals, attorneys and future attorneys. This program will help make that happen.”

In addition to courses on Cybersecurity Law and Computer Crimes Practice, the Project includes a full day Conference, to be held in Spring, 2011 (also free of charge to the legal and academic communities); a Portal Website which will function as an up-to-date electronic compendium of applicable state and federal law and regulations; and for students, internships in the field.

Dean of Rutgers–Newark Law School, John J. Farmer, Jr. said “We are very pleased to be a partner in this project. It will give students and attorneys the chance to fully immerse themselves in an important and emerging area of the law, and in fieldwork which will solidify that training for our students. “

Dean Patrick E. Hobbs of Seton Hall Law agreed, stating, “This is a tremendous opportunity for academics, attorneys and law students to come together and learn from each other while devising solutions to our common problems involving law, science and technology. It’s exactly why the Gibbons Institute was founded.”

Learn more about the Cybersecurity Law Project at

document Read the full New Jersey Law Journal article, After Hours, here

document Read the full The Record article, Bergen Prosecutor Partners With Seton Hall, Rutgers in Cybersecurity Law Course, here


Professor Mark Alexander

Professor Mark Alexander on the WNYC Radio Show, The Takeaway, Commenting on the August 24 Primary Results

August 25, 2010

Professor Mark Alexander, who served as Senior Policy Advisor to Barack Obama during his presidential campaign in 2008, joined WNYC’s morning talk show, The Takeaway, to discuss the implications of the August 24 primary election results, which resulted in victories of non-incumbents and “outsiders” such as Joe Miller, representing the Tea Party movement, who as of August 25, was in the lead for the Republican nomination for senator in Alaska over incumbent Lisa Murkowski. When asked if these victories indicate that these outlying political movements are taking power, Professor Alexander responded:  

“I’m not sure they are truly coalescing, they are popping up in general races. The question becomes, do they have the ability to coalesce around one person to become, not so much a traditional party, but more like traditional force where they can be counted on in state after state after state. “

The Takeaway hosts also noted that John McCain’s primary victory over contender Representative J.D. Hayworth cost the Senator more than $20 million, a significant sum to spend on a primary race, symbolizing a trend toward big spending in smaller elections. Professor Alexander reflected that money does not always change everything. Citing the effect of the Supreme Court decision on Citizens United, which allows “unlimited” corporate contributions to election campaigns:

“The spending is out of control, and…with the Citizens United decision, the money is going to keep on going... But what is interesting also is that money doesn’t always guarantee results... The question is: is money going to prevail, or will there be a significant grassroots movement going forward? We tried to organize people from the grass roots up in the Obama campaign, I think Sarah Palin is trying to have that effect, the Tea Party is trying to have that effect, and that may be a trend we are seeing in larger politics.“

As for advice to candidates as they face the November elections, Professor Alexander cited the current dissatisfaction with our current political system and the precarious economic environment:

“Candidates should be aware that there is a lot of emotion out there… People are still anxious about their jobs, anxious about their houses and anxious about the economy…whether candidates can tap into that emotion and get people involved in their politics, I think that’s one of the big questions we can look forward to in the future. “

icon_listen Listen to the full WNYC Morning Talk Show, The Takeaway, here.


Professor Stephen Lubben

Professor Stephen Lubben in the New York Times Regarding the Source of Payment of Legal Fees for Lehman Executives and in BusinessWeek on the $918 million in Adviser Fees paid in the Bankruptcy thus Far

August 19, 2010

Professor Stephen Lubben appeared in both the New York Times and BusinessWeek regarding different aspects of the Lehman Brothers bankruptcy proceedings. In BusinessWeek, Professor Lubben commented as to potential remedy if, at a later date, the judge in the case were to decide that the fees paid to Lehman’s advisers thus far had been in some way excessive. According to BusinessWeek,

Lehman Brothers Holdings Inc. paid its lawyers and managers $44.5 million last month, bringing the investment bank’s total adviser fees to $917.6 million after 22 1/2 months in bankruptcy, a regulatory filing shows.

Professor Lubben noted for BusinessWeek that:

“The judge can always claw back fees at the end of the case, when he’ll have a better perspective on the value of the fees.”

In the New York Times, Professor Lubben rebutted the notion espoused by William D. Cohan that there was some financial advantage to be gained for Lehman creditors in disallowing the corporate payment of legal fees for its executives. In “A Different Take on Lehman’s Executive Fees” the Times writes:

On the Opinionator blog of The New York Times, William D. Cohan writes that he finds it distasteful that former Lehman Brothers executives are asking to have some of their legal fees paid for by the fallen bank’s estate.

But Stephen Lubben, a bankruptcy professor for the School of Law at Seton Hall University, disagrees. His main point? Lehman already agreed a long time ago to pay those fees.

Professor Lubben points out that the executives — Richard S. Fuld Jr., Erin Callan, Ian Lowitt and others — are receiving their reimbursements through directors and officers’ liability insurance policies that Lehman bought awhile ago. Lehman creditors have no claim on these policies.

He adds:

But not paying the claims of former officers and directors would result in them asserting claims against the estate for reimbursement. So not allowing access to the insurance policies seems more likely to harm creditors, by expanding the pool of unsecured claims.

document Read the full New York Times DealBook article, A Different Take on Lehman’s Executive Fees, here

document Read the full BusinessWeek article, Lehman Adviser Fees Reach $918 Million in 22 Months, here


Professor Jonathan Hafetz

Professor Jonathan Hafetz in Everything from the Washington Post, Boston Globe and Huffington Post to the Saudi Gazette and Himalayan Times Regarding the Clandestine Shuffling of Detainees Through Guantanamo and ‘Black Sites’

August 11, 2010

Professor Jonathan Hafetz appeared in a widely reported exclusive Associated Press article which ran in media sources throughout the world. The article details through flight plans and interviews the secret detention and transfers of four “high value” detainees through “black sites” located throughout the world and a secret CIA holding facility in Guantanamo Bay Cuba. The transfers seemingly correspond to anticipated Court decisions which found rights for detainees in Guantanamo such as access to lawyers.

Professor Hafetz, co-author along with Professor Mark Denbeaux of “The Guantanamo Lawyers, Inside a Prison Outside the Law,” is also a Center for Policy & Research Faculty Member. Noting that Professor Hafetz has defended a number of Guantanamo detainees, the Associated Press wrote:

“This was all just a shell game to hide detainees from the courts,’’ said Jonathan Hafetz, a Seton Hall University law professor who has represented several detainees.

document Read the full Washington Post article, CIA Whisked Detainees From Gitmo, here


Professor John Jacobi

Professor John Jacobi on NBC New York Regarding Mental Health Reform in New Jersey

August 11, 2010

Professor John Jacobi, long an advocate of mental health reform and the rights of those who suffer with mental disabilities, was interviewed for a news story on NBC New York. The issue at hand involved a recently filed lawsuit against the State of New Jersey; the suit seeks creation of an independent review board to address patient objections to medication. Those who filed the suit claim that the appeals process in place is not impartial.

Although the State declined comment,

Ellen Lovejoy, of the New Jersey Department of Human Services, said : "It is our mission to provide recovery-oriented treatment while ensuring patients' civil rights and their safety as well as staff safety."

Considering nuances in the face of a favorable, but seemingly blanket policy, Professor Jacobi reflected on instances in which medication may enable a patient to ultimately offer informed consent. The news report stated:

An outside expert favors an independent review process but says sometimes psychiatrists insisting on certain medicine can benefit their patients.

"In some rare instances, forcible treatment should be provided in order to allow patients to make conscientious and well-founded judgments for themselves," said Seton Law School Professor John Jacobi.

document Read the full NBC New York article, Lawsuit Pushes Mental Health Reform in New Jersey, here

Kate Matos ’11 in The Health Care Blog on New Rules for Insurance Appeals Under PPACA

August 10, 2010

Kate Matos wrote an article on the new rules governing health insurance coverage appeals under PPACA 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.” Kate Matos’ article, “The New Rules for Insurance Appeals Under PPACA,” 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 Health Care Blog by Kate, The New Rules for Insurance Appeals Under PPACA, here


Professor Thomas Healy

Professor Thomas Healy on Fox TV News on a Federal Appeals Court Decision on the FCC’s Indecency Policy.

August 10, 2010

Professor Thomas Healy appeared on nationally syndicated Fox News regarding a recent Federal Appeals Court decision which struck down the FCC’s policy on indecency as being “overly vague.”

video Watch the full Fox video, here

Gaia Bernstein

Professor Gaia Bernstein

Professor Gaia Bernstein was featured in The New York Times, Forbes and The Globe and Mail concerning her recent scholarship on “Intensive Parenting” and the law

July 30, 2010

Professor Gaia Bernstein appeared in the New York Times, Forbes Magazine and Canada’s leading newspaper, The Globe and Mail, concerning her recent scholarship on “Intensive Parenting” and the Law. These articles follow on the heels of another recent article in the ABA Journal.

Regarding the general perception that “Intensive Parenting” or “Helicopter Parenting” is a norm appropriate for unmitigated aspiration, The Times writes:

Bernstein and Triger are not so sure. They cite studies that suggest what we have discussed on Motherlode before, that what they call intensive parenting (which others dub helicopter parenting or smothering mothering) can cause more harm than good. It is creating an anxious, dependent generation, they write, and it can “seriously undermine one of the most important roles of parents, namely, nurturing a sense of independence and separation from the parent.”

They fear that the trend is already being codified into law. In custody cases, lawyers advise parents, particularly the one who might have had less day-to-day participation in the children’s lives, to enter what Bernstein calls “the race for involvement.”

“It becomes a strategy, to know all the teachers, coach little league, text your children 20, 30 times a day,” she said in an interview.

Professor Bernstein and her co-author have also cautioned that “the law repeatedly incorporates child-rearing practices into mandatory legal standards and that we should expect to see pressure on legislatures and courts to turn sophisticated child rearing practices used by Intensive Parenting adherents into legal standards. ‘Some child rearing practices are desirable social norms but not desirable legal standards,’ Professor Bernstein explained. “For example, some states now place women who consume alcohol during pregnancy under civil confinement. Would we want to see pregnant women who do not to take folic acid vitamins—which reduce the probability of birth defects— similarly placed under civil confinement?”

And that

“Intensive Parenting is largely a socio-economic construct. It is class, race, ethnicity and culturally dependent and tends to place its weight squarely upon the shoulders of women—who are still overwhelmingly responsible for the raising of children. “A hasty and uncritical incorporation of such standards in a multicultural society would increase existing biases and force Intensive Parenting on those who may be financially unable or ideologically unwilling to adopt it.”

document Read the full New York Times article, Defining a Successful Parent, here

document Read the full Forbes article, Custody Goes To The Craziest Parent, here

document Read the full Globe and Mail article, Give Helicopter Parents a Break, here

document Read the full ABA Journal article, Courts Reward Helicopter Parents, Two Law Profs Say, here

document Read the Seton Hall Law Press Release, Paper Warns Against the Use of the Law To Enforce 'Intensive Parenting', here


Kate Greenwood In a Featured Op-ed in The Record and North on Medical Marijuana

July 28, 2010

Center for Health & Pharmaceutical Law & Policy Research Fellow and regular Health Reform contributor, Kate Greenwood, authored a feature Op-ed which appeared in The Record and North . In the article, citing conflicts with federal law and funding, Ms. Greenwood argues against the recently proffered strategies to delay and amend the “New Jersey Compassionate Use Medical Marijuana Act” to allow Rutgers University and state teaching hospitals to grow and distribute marijuana. 

document Read the Op-ed, “The alternate approach to medical marijuana distribution,” here.

Center for Social Justice

Center for Social Justice

Center for Social Justice Report on Day Laborer Wage Theft & Abuse featured in the New York Times, NJ Law Journals & more...

July 28, 2010

The Center for Social Justice report, “Ironbound Underground: Wage Theft & Workplace Violations Among Day Laborers in Newark’s East Ward,” was featured in the New York Times, New Jersey Law Journal, The Record, Star Ledger, WOR Fox TV News, Univision TV News, NJN 12 News, WPLJ Radio, Comunidade News, Immigration Law Prof Blog, and other media sources (See below). The report, issued in both English and Spanish, was co-authored and compiled by Professor Brian Lonegan and Practitioner-in-Residence Anjana Malhotra, along with Rafael Perez and Nicholas Norcia, two recent graduates of Seton Hall Law who worked on the report during their final semester of law school.

In the report, the authors found that 96% of immigrant day laborers in the Ironbound section of Newark, New Jersey have been victims of wage theft in one form or another. The report shows that:

  1. Seventy-seven percent of day laborers reported at least one instance in the last year of an employer paying them less money than originally promised, compared to 48% of day laborers nationally;
  2. Sixty-two percent reported at least one instance of not being paid at all, compared to 48% of day laborers nationally;
  3. Eighty-eight percent reported that employers had not paid them overtime for working over 40 hours a week, as required by state and federal laws;
  4. Twenty-seven percent reported being assaulted by either their employer or his agent;
  5. Eighty percent reported that employers rarely, if ever, provided safety equipment (safety goggles, hard hats, protective masks, etc.);
  6. Nearly 20% reported being injured at work (out of work for more than 20 days as a result).

document Read the full New York Times article, A Survey in Newark Details Exploitation of Day Laborers, here

document Read the full New Jersey Law Journal, Cross-examination: Legal Issues Facing Day Laborers, here (subscription required)

document Read the full The Record Op-ed, Underground in the Ironbound, here

document Read the full Star Ledger feature, Report: Newark Day Laborers Regularly Cheated by Employers, here

document Read the full Star Ledger Editorial Board piece, Easy to Exploit: Hard Work, No Pay for many Illegal Immigrants, here

document Read the full Communidade News feature, Pesquisa Revela Exploracao de Trabalhadores Diarios, here

document Read the full Immigration Prof Blog,  Seton Hall Report: Ironbound Underground: Wage Theft and Workplace Violations Among Day Laborers in Newark's East Ward, here

icon_listen Listen to the WPLJ Interview with Professor Lonegan, here

document Read Seton Hall Law Press Release, Ironbound Underground: Theft and Workplace Theft Among Day Laborers in Newark’s East Ward, here


Professor Gaia Bernstein

Professor Gaia Bernstein in the ABA Journal on Intensive Parenting and the Law

July 19, 2010

Professor Gaia Bernstein appeared in the ABA Journal regarding her recent scholarship on Intensive Parenting and the Law. In the paper, which is to be published in the U.C. Davis Law Review, Professor Bernstein counsels against the incorporation of such parenting standards into the law, but notes that the process of incorporation has already begun.

document Read the full ABA Journal articleCourts Rewards Helicopter Parents, Two Law Profs Say, here

Professor Stephen Lubben

Professor Stephen Lubben in Bloomberg News & BusinessWeek on Fraudulent Transfer and Successor Liability Issues in the Purchase of BP Assets

July 16, 2010

Professor Stephen Lubben appeared in Bloomberg News and Businessweek regarding fraudulent transfer and successor liability issues for putative purchasers of BP assets.

Businessweek notes,

Apache Corp. may agree to pay $10 billion to $11 billion in cash next week for some of BP’s Alaskan assets, according to people familiar with the deal. Exxon Mobil Corp., Royal Dutch Shell Plc and Tullow Oil Plc have also said they may be interested in buying some of BP’s properties.

Laws prohibiting fraudulent transfers could allow victims to sue a buyer to recover money deemed essential to pay claims, and successor liability could leave a purchaser with BP’s obligations, if BP files for bankruptcy. A proposed change to federal bankruptcy laws could force a buyer to wait for BP to get approval from victims for the sale, or persuade a judge it will have enough assets to pay claims in full.

Because the assets would seem to be subject to discount because of the BP liability in the spill, according to John Tucker, “a lawyer with Rhodes Hieronymus Jones Tucker & Gable in Tulsa. ‘They [would be asset buyers] have to make certain they’re paying a justifiable price” or else a bankruptcy court could reverse the deal in the future.”

Professor Lubben noted that

Apache might hire an independent appraiser to write an opinion letter saying either that the price was reasonable, or that BP was solvent, said Stephen Lubben, a bankruptcy law professor at Seton Hall University School of Law in Newark, New Jersey. Apache’s purchase if completed will include half of BP’s stake in Alaska’s Prudhoe Bay oil field, the people familiar with the deal said.

“Either defeats an element of a fraudulent transfer action,” Lubben said. “Somebody could always challenge the opinion letter, but it makes it much more costly for the plaintiffs.”

Under some state laws, an oil spill victim could sue to undo a BP sale that closed four years earlier, said Lynn Lopucki, a law professor at the University of California, Los Angeles. New York State law goes back six years, Lubben said.

document Read the full Businessweek article, BP Asset Buyers May Face Suits as It Raises Money, here

document Read the full Bloomberg article, BP May Saddle Asset Buyers With Suits as Claims Rise, here

Professor Frank Pasquale

Professor Frank Pasquale in the Financial Times on Net Neutrality, Search Neutrality & Google

July 14, 2010

Professor Frank Pasquale appeared in the Financial Times regarding Net Neutrality, Search Neutrality and Google.

The article, “Net neutrality comes back to haunt Google,” discusses ongoing review of Google search engine practices by various governmental entities, including antitrust regulators, the European Commission, and the German Cartel Office. The reviews are deemed to be “informal” thus far, though Europe’s top competition officer is said to have declared that he was “looking at the issues ‘very carefully.’”

The article also notes that it is somewhat ironic that Google, which has become the primary torch bearer in the battle for Net Neutrality has helped pave the way in a sense for the next battle, Search Neutrality.

FT writes:

Google has become the main advocate in Washington for a set of regulations to prevent internet service providers favouring particular companies’ traffic.

However, that campaign, over what is known as “net neutrality”, has handed a gift to its own detractors.

This year, “search neutrality” has become the rallying cry of activists who believe that Google has too much power to decide which internet sites are granted the attention that comes with a high search ranking, and which are consigned to outer darkness.

After regulating the “pipes” of the internet with net neutrality, says Frank Pasquale, a professor at Seton Hall law school, “we need to look at the next part of the bottleneck, and that means search”.

document Read the full Huffington Post article, Net Neutrality Comes Back to Haunt Google, here

Professor Marc Poirier

Professor Marc Poirier in the Daily Record on the Constitutionality of an Ordinance Designed to Isolate Tattoo Parlors and Adult Businesses

July 12, 2010

Professor Marc Poirier appeared in the Daily Record, analyzing the constitutionality of a proposed Chatham borough ordinance which “prohibits adult entertainment establishments and tattoo parlors within 150 feet of a school, houses of worship, residential areas and school bus stops.” The restrictions do not ban such businesses within the borders of the town, but do relegate such businesses to a total of 10 lots within an industrial area within the town.

Agreeing with the township attorney who noted that an ordinance which barred such businesses entirely would be susceptible to legal challenge (infringement of First Amendment speech rights),

Marc R. Poirier, professor of law at Seton Hall University School of Law, said Chatham's approach is on the right track. A municipality can use its zoning authority to prevent harmful “secondary effects" such as decline in property values and crime, "so long as it has some evidence that the type of business whose location is being limited is likely to cause those undesirable effects." He noted that the case law is "quite confused about just how much evidence is needed." A town doesn't need to do its own study.

Professor Frank Pasquale

Professor Frank Pasquale in The Health Care Blog on Privacy and Electronic Surveillance of Nurses

July 01, 2010

Professor Frank Pasquale was featured in The Health Care Blog, regarding the use and implication of Radio Frequency Identification (RFID) systems in hospitals. The article, which appeared first in Health Reform Watch, is entitled “RFID Tags for Nurses. Then Everybody?” and can be found below.

document Read the full Health Care Blog article, RFID Tags for Nurses. Then Everybody?, here

Professor Edward Hartnett

Professor Edward Hartnett in the Star Ledger Regarding Decision in NJ Corruption Sting Trials

June 15, 2010

Professor Edward Hartnett offered background procedural information and commentary for the Star Ledger regarding the implications of plea bargains made to charges which have subsequently been found by the court to not be applicable to defendants who have pled guilty to such. 

The Star Ledger writes:

During last year's big corruption sting, federal prosecutors took the seemingly novel step of charging candidates in a Jersey City election with extortion for allegedly trying to sell their influence even before being elected.

Now, a federal judge in Newark has said prosecutors went too far.

In a 27-page opinion, U.S. District Judge Jose L. Linares dismissed extortion counts against two defendants, saying the statute does not apply to candidates who did not hold office when they allegedly committed the crime.

Prosecutors plan to appeal the decision.

Some defendants have actually already pled guilty to this charge, leaving these defendants in the somewhat anomalous position of having pled guilty to a statute which, as a matter of law, cannot apply to them. Judge Linares, after rendering his decision, agreed to indefinitely postpone the commencement of a one year prison sentence for one such defendant, LaVern Webb-Washington.

Even if such pleas were vacated through the successful navigation of complex collateral proceedings, however, other charges stemming from the events would seemingly still be available for subsequent prosecution as both a matter of law and the express language of the plea agreements.

The Star Ledger reports that

Some lawyers think - or hope - it also could delay and confound the cases of several defendants, including some who have already pleaded guilty.

"Everything is in limbo," said John D. Lynch, a lawyer for Louis Manzo, a former Jersey City mayoral candidate whose case was the subject of Linares' opinion.

Manzo, who was charged along with his brother, Ronald, still faces bribery and mail fraud charges. And anyone who pleaded guilty and succeeded in reversing that plea could still be charged with a different crime.

"At the end of the day, this may just push defendants from one charge to another," said Edward Hartnett, a Seton Hall Law professor who specializes in federal courts.

document Read the full Star Ledger article, Dismissing Hobbs Act Extortion Counts Against Jersey City Candidate and His Brother Has Put Their Cases and Others "in limbo" until government's appeal is settled, here

Professor Kip Cornwell

Professor John Kip Cornwell in Star Ledger on Jury Polling in Child Endangerment Verdict

June 15, 2010

Professor John Kip Cornwell appeared in the Star Ledger regarding a request by a defense attorney to poll a jury which convicted a 43 year old WMCA chaperone of child endangerment for engaging in “a shower game” with an 11 year old boy.

A juror in the case, Linda Eckert, came forward to express her regret via letter for having voted to convict the man.

The Ledger reports that “Eckert said some jurors favored acquittal on the endangering charge. However, they voted to convict after being told by one unnamed juror that child endangerment was a minor charge that carried no jail time, ‘so a game of this nature would not be played again.’" 

The unnamed juror, however, was incorrect. The man convicted, “faces up 10 years in prison and registration as a sex offender, but if it is determined the jury was tainted by ‘juror misconduct,’ the guilty verdict could be reversed.” Polling juries, however, is highly unusual. 

The Ledger reports

Morris County Assistant Prosecutor John McNamara said in papers opposing a jury poll that Eckert’s misgivings "fall far short of the very high bar" requiring the "extraordinary" step of questioning a jury. The state Supreme Court also "has long held that verdicts should not be second-guessed based on second thoughts of a juror," to avoid "an open invitation to any disgruntled juror to try to destroy a verdict," McNamara said.

[Judge] Ironson has not decided whether to question the jurors.  

Legal observers disagree on whether such a move is necessary. 

Attorney Rubin Sinins of Newark said the jury should be queried because it appears it erred by finding Hertel guilty "based on a misunderstanding of the consequences" and to send a message rather than on the facts. 

But Seton Hall Law Professor John Kip Cornwell said the jury should not be polled. Juror regret is not uncommon and Eckert’s concern reflects typical deliberation give-and-take rather than misconduct, he said. 

"I don’t really see this as juror misconduct," Cornwell said. "This is just one juror [the unnamed juror who said there would be no jail time attached to the guilty verdict] spouting off his mouth. It’s his opinion."

document Read the full Star Ledger article, Juror In Trial for Randolph Chaperone Convicted of Child Endangerment says 'Misinformation' Influenced Panel, here

Professor Stephen Lubben

Professor Stephen Lubben in Reuters & International Business Times on the Prospect of BP Insolvency

June 15, 2010

Professor Lubben appeared in Reuters and the International Business Times. As BP stock tumbled to a 14 year low amidst investor doubt as to the long term viability of the company because of liabilities incurred due to the worst oil spill in U.S history, some have also begun to consider the prospect of bankruptcy for BP. IBT reports:

Restructuring experts agreed that by running the numbers alone, BP looked like it could handle the financial damage. 

Brad Sandler, a bankruptcy attorney with Pachulski Stang Ziehl & Jones in Wilmington, Delaware, said the likelihood of a BP bankruptcy was "probably remote" because of its access to credit, solid cash flow and a healthy balance sheet. 

BP reported about $27 billion of cash flow from operations in 2009 and total liabilities amounted to about 56 percent of total assets on its balance sheet of about $235 billion. 

Stephen Lubben, a law professor at Seton Hall University School of Law in Newark, New Jersey, added that the potentially massive liability bill was not large relative to BP's size. 

"You could add $50 billion of debt to their balance sheet and they would still be solvent, from an accounting perspective," he said. 

But Lubben noted that situation could change depending on whether creditors and banks get nervous and cut off BP's access to funds, even if there was no sign of that now.

Professor Stephen Lubben

Professor Stephen Lubben in the New York Times on the Impact of Prospective Legislation to Circumvent ‘Too Big to Fail’ Bank Bankruptcies

June 03, 2010

Professor Stephen Lubben was featured again in the New York Times’ Dealbook in an article critical of recently passed legislation by the Senate which would create and alternative to bankruptcy for banks. The legislation would utilize a “resolution authority” which would function under the aegis of the FDIC and in lieu of the bankruptcy system.

The resolution authority would attempt to raise bailout money through the industry as opposed to through taxpayers. Unlike the House bill however, the Senate’s bill chooses to attempt to gather money from industry after a catastrophe. The House bill provided a means of collecting money from the banking industry prior to a catastrophe in order to set up a resolution fund in advance.

The Times noted:

“I worry about the politics of trying to extract the costs from the industry if it might have a negative effect on the economy — that could become the problem,” said Stephen Lubben, a bankruptcy professor at Seton Hall Law School.

Some bankers have privately acknowledged that one of the reasons they are against a prepaid fund is they can’t afford it.

“That suggests that they are not in a position to pay ex post,” Mr. Lubben added. “The ex post is an illusion.”

document Read the full New York Times article, To Prepay for a Crisis, or Not, here

Professor Bryan Lonegan

Professor Bryan Lonegan in the New York Times & AOL News

May 17, 2010

Professor Bryan Lonegan appeared in the New York Times and AOL News regarding immigration policy and practices and an announcement by New York Governor David Paterson that he would, according to the NY Times, “accelerate consideration and granting of pardons to legal immigrants for old or minor criminal convictions, in an effort to prevent them from being deported.”

Governor Paterson’s announcement is seen to be at odds with recent federal policy which has aggressively sought deportation for individuals with even relatively minor and old offenses. A reclassification of many such offenses as “aggravated felonies” in 1996 has subjected many legal immigrants to deportation.

The NY Times noted that

“Mr. Paterson does not need legislative approval to undertake the new policy. Federal immigration laws enacted in 1996 greatly expanded the categories of legal immigrants subject to mandatory deportation as ‘aggravated felons,’ including people who had pleaded guilty to misdemeanor drug possession.”

And that

“Only a governor’s pardon can prevent deportation in such cases, even when the legal immigrant is married to a United States citizen and has citizen children.”

Considering the magnitude and ramifications of Governor Paterson’s initiative, the Times looked to Professor Lonegan:

“This is huge,” said Bryan Lonegan, a veteran immigration lawyer who is an expert on the immigration consequences of criminal convictions. “So many legal permanent residents are being arrested and detained based on trivial convictions — the guy being deported for swiping a MetroCard when he fell on hard times, people with minor marijuana convictions, people who shoplifted in a moment of weakness,” he added.

document Read the full New York Times articleNew Paterson Policy May Reduce Deportations, here

document Read the full AOL News articlePaterson Vows to Pardon More Legal Immigrants, here

PROFESSOR Stephen Lubben

Professor Stephen Lubben Featured in Fortune Magazine, The Washington Post, New York Times, Rortybomb & Reuters

May 14, 2010

In Fortune magazine, Professor Lubben appeared in an article entitled “6 simple steps to really fix Wall Street.” The article considers the prospect of new regulations for the financial sector in light of the recent financial crisis, and makes suggestions regarding the same.

Professor Lubben appears as part of step number 4, “Beef up the bankruptcy laws.” Commenting on the difficulties derivatives can impose upon orderly bankruptcies, Fortune notes

Stephen Lubben, a bankruptcy professor at Seton Hall Law School, is one of the many academics who say the law needs to be changed. (Among bankruptcy mavens, it is a topic of raging debate.) "Derivatives counterparties should be treated like other secured creditors," he argues, rather than be able to seize and sell collateral without bankruptcy court permission. Secured lenders get to seize their collateral relatively quickly, but you don't get chaotic messes like the Lehman bankruptcy.”

The article, written by Fortune’s senior edit-at-large, Allan Sloan, also ran as a special feature in the Washington Post.

In the New York Times, Professor Lubben appeared in a Sunday Business Times feature entitled “Who knew bankruptcy paid so well?” The article details the more than $730 million in fees and expenses charged thus far in the Lehman Brothers bankruptcy by lawyers, accountants and restructuring experts. In 2008 Professor Lubben, served as the principal investigator for the American Bankruptcy Institute’s (ABI) leading empirical study of professional fees in Chapter 11 bankruptcy cases—the most comprehensive analysis to date of Chapter 11 bankruptcies.

The Times notes that “first- and second-year associates [are] charging more than $500 an hour in some of these bankruptcy cases” and “at several firms, including Weil and Milbank, Tweed, Hadley & McCloy, partners now charge $1,000 an hour or more for their bankruptcy services.  

The Times also noted that

Many people in the industry agree that Lehman, in particular, is a huge case that tests even the most experienced lawyers. “Lehman is a sufficiently complicated company that it would be safe to assume that if it weren’t for equally sophisticated professionals running the Chapter 11 case, that the creditors would essentially receive nothing,” says Stephen J. Lubben, a professor at the Seton Hall University School of Law. “In those situations, it makes sense for sophisticated professionals to handle the case.”

In Reuters, which is distributed throughout the world, Professor Lubben commented on the implications of a sudden large drop in the stock market which was thought to be related to financial difficulties in Greece. Professor Lubben remarked:

"If this represents a return of risk adversity to the debt markets, there are lots of U.S. companies that might face Chapter 11. In the past few months, the return of the junk bond market has saved many companies from going into bankruptcy, we'll have to see if that has ended."

Mike Konczal, whose blog Rortybomb has been described by Paul Krugman as “essential reading for anyone interested in financial reform,” interviewed Professor Lubben at length. Konczal writes:

There have been two things I never quite understood about derivatives reform. One is that I never felt I knew the full motivation of all the corporate end-users who wanted exemptions from derivatives rules. The other thing is trying to figure out why the over-the-counter derivative market jumped after 2005.

….(Considering that I think of that 2005 bankruptcy reform as an anti-human machine designed to “sweatbox” poor people suffering under medical debt and income volatility, also having a narrative about how that bankruptcy reform encouraged the elite to gamble even more recklessly in liquidity risk and capital structure arbitrage, gambling which ended up ravaging the world economy and almost causing another Great Depression, would make me very, very happy.)

So with this in mind I wanted to find a derivatives bankruptcy expert. And I found one of the best to interview. Stephen J. Lubben is the Daniel J. Moore Professor of Law at Seton Hall in Newark and a blogger at the excellent Credit Slips. He took the time to speak to me about this matter.

document Read the full Rortybomb interview, About the End User Exemption with Stephen Lubben, here

document Read the full CNN Money article, 6 Simple Steps To Really Fix Wall Street: Full Version, here 

document Read the full New York Times article, Who Knew Bankruptcy Paid So Well?, here

document Read the full Reuters articleStock drop could hit deals, restructurings if extended, here


Professor leena Khandwala

CSJ Wins Personal Jurisdiction Case Before the New Jersey Appellate Division, Featured in the National Law Journal

May 06, 2010

On May 3, 2010, in an opinion that reads like a Civil Procedure textbook, the Appellate Division of the Superior Court of New Jersey ruled unanimously in favor of a New Jersey couple, Erwin and Lesley Halley, represented by Seton Hall Law’s Center for Social Justice. CSJ appealed a lower court decision which had denied the Halleys the ability to bring a malpractice suit against Rene Myatt, their New York attorney, based on lack of personal jurisdiction.

Myatt, who was not licensed in New Jersey, had agreed to represent the Halleys in negotiating with their lenders regarding the dispositions of their four New Jersey properties, all of which were facing foreclosure. The Halleys paid $2,250 for her services. The Halleys allege that Myatt committed malpractice by making negligent misrepresentations to the Halleys and by failing to conduct the due diligence that a reasonable attorney representing clients in a real estate transaction should undertake. The trial court granted Myatt’s motion to dismiss based largely on its inability to conclusively determine whether Myatt had made a physical entry in New Jersey in connection with her representation.

The Appellate Division rejected that reasoning, finding that Myatt had sufficient contacts with New Jersey to warrant the jurisdiction of New Jersey courts. The court found that Myatt's activities, which included regularly corresponding with her New Jersey clients and with lender’s New Jersey counsel by phone, fax and mail, “were purposely directed at New Jersey residents and directly impacted New Jersey real property, which was the subject of litigation in New Jersey courts. Simply put, defendant's contacts with New Jersey had significant effects in this State.” The court further noted that subjecting the New York attorney to suit in New Jersey did not offend traditional notions of fair play and substantial justice as required under due process.

Professor Linda Fisher, who teaches Civil Procedure and runs a section of CSJ’s Civil Litigation Clinic, prepared the brief in the case along with CSJ Clinical Teaching Fellow Leena Khandwala and clinic students Brienne Henderson and Matt Ingles. Both Henderson and Ingles happened to be former Civil Procedure students of Professor Fisher. Leena Khandwala argued the case before the Appellate Division in March of 2010.

“It was amazing, really. Civil Procedure in action,” said Brienne Henderson. “The law came to life with the Professor who taught it to me.” Matt Ingles agreed, stating: “Theory into practice. And at the end of the day, our clients will now get their day in court and a chance at justice.”

document Read the Leagle OpinionHalley v. Myatt, here 

document Read the New Jersey Law Journal articleN.J. Malpractice Suit Can Proceed Against Lawyer Who Did Work From New York, here

ASsociate Dean Kathleen Boozang

Associate Dean Kathleen Boozang in the Boston Globe on the Implications of a For-Profit Takeover of Boston’s Catholic Hospital Network

May 04, 2010

Associate Dean Kathleen Boozang appeared in the Boston Globe concerning the implications of a for-profit firm taking the reins of Boston’s Catholic hospital network, Caritas Christi Health Care.

Although the prospective acquisition of the six Caritas Christi hospitals by a private equity firm, Cerberus Capital Management, would leave the hospitals governed by a stewardship agreement worked out with the Roman Catholic Archdiocese of Boston, there has been some concern that such a transfer of ownership can ultimately jeopardize the Catholic charitable mission at the expense of corporate profits.

The Boston Globe noted that:

Kathleen M. Boozang, an associate dean and professor at Seton Hall Law School, sees a “fundamental dissonance’’ between the work of the church and for-profit health care institutions, which she says are more likely to focus on profitable services at the expense of those that benefit poor communities, and are more likely to leave urban areas when the going gets tough.

“Ultimately Catholic entities live by their mission, and their mission . . . requires them to make sure their assets are used to the benefit of the hospital and its patients,’’ she said. “The point of a for-profit is to make money for investors.’’

document Read the full article, For-profit Saint Vincent Hospital may offer peek at Caritas future, here

Professor Kip Cornwell

Professor Kip Cornwell in the Star-Ledger on the Burden of Proof in the Newark Schoolyard Shootings

April 30, 2010

Professor Kip Cornwell was featured in the Newark Star Ledger regarding the burden of proof the prosecution faces in the Newark schoolyard shootings. In particular, Professor Cornwell spoke in regard to the trial of Rodolfo Godinez, the first of six defendants scheduled to be tried for the execution style shooting of four college friends on the night of August 4, 2007. Three of the four victims died. Godinez is charged with murder, attempted murder, robbery, conspiracy and weapons charges.

The Star Ledger reports that “Prosecutors say they can prove Rodolfo Godinez was in the city schoolyard” at the time of the shootings and that “Godinez’s own statements to police following his arrest in the three shooting deaths, along with DNA evidence gathered, place him at the Mount Vernon Elementary School scene that night.” The Ledger also reports, however, that “Godinez has long maintained he did not take part in the shooting or even knew it was going to happen.”

Professor Cornwell noted that mere presence is not enough. The Ledger noted:

John Kip Cornwell, a Seton Hall Law School professor, said because there appears to be no physical evidence or eyewitness to show Godinez actively took part in the schoolyard shooting, “his mere presence isn’t enough to establish his liability as an accomplice.”

Prosecutors “have to show he somehow facilitated the crime. He’s not guilty just because he didn’t affirmatively prevent someone else from shooting, Cornwell said. “Those are major hurdles for the prosecution, because it bears a burden, a higher burden. They have their work cut out for them.”

Professor Charles Sullivan

Professor Charles Sullivan in Reuters on Class Action Cert. in Wal-Mart Sex-Discrimination Case

April 27, 2010

Professor Charles Sullivan was featured in a Reuters article appearing in media sources throughout the United States and Canada regarding the Ninth Circuit’s decision to certify as a class action what has been termed “a landmark sex-discrimination lawsuit against Wal-Mart.” The decision potentially exposes Wal-Mart to what may amount to billions of dollars in damages from hundreds of thousands or even a million and a half employees.

The lawsuit claims that “that Wal-Mart paid female workers less than male colleagues and gave them fewer promotions.”

Professor Sullivan noted that Wal-Mart would face "huge economic pressure" to settle the case if the Ninth Circuit ruling was allowed to stand. "Even if there is only a small chance it could lose at trial, the risk of having tens of billions of dollars of potential liability is too great," said Sullivan.

But he noted that the Supreme Court has been unsympathetic to large class-actions of late.

Wal-Mart has said that it would appeal the decision to the Supreme Court.

document Read the full MSNBC article, Lawsuit Exposes Wal-Mart to Billions in Potential Damages, here

Professor Baher Azmy

Professor Baher Azmy on Declaration that Bush, Cheney, and Rumsfeld “knowingly held” hundreds of innocent men in GTMO

April 09, 2010

Professor Baher Azmy was interviewed by Senior Washington correspondent Andrea Stone for an AOL News feature article regarding the statements of Lawrence Wilkerson, who was Secretary of State Colin Powell’s chief of staff.

The AOL feature quotes at length from a recent London Times article; the London Times obtained a copy of a signed declaration made by Wilkerson in support of litigation by a former Sudanese Guantanamo detainee “seeking damages for his alleged torture at the prison.”

Stone writes:

According to the account, Wilkerson said Cheney and Rumsfeld barred the release of innocent detainees because "the detention efforts would be revealed as the incredibly confused operation that they were," and this was "not acceptable to the administration and would have been severely detrimental" to Rumsfeld.

Wilkerson said Vice President Cheney "had absolutely no concern that the vast majority of Guantanamo detainees were innocent. ... If hundreds of innocent individuals had to suffer in order to detain a handful of hard-core terrorists, so be it."

Wilkerson also stated that

"I discussed the issue of the Guantanamo detainees with Secretary Powell. I learnt that it was his view that it was not just Vice President Cheney and Secretary Rumsfeld, but also President Bush who was involved in all of the Guantanamo decision making."

Other media accounts have noted that Wilkerson’s personal observations are corroborated by the work of Professor Mark Denbeaux and the Center for Policy and Research here at Seton Hall Law. (see here and here)

Stone further notes that “The latest revelation about the now infamous prison hardly surprised defense lawyers representing current and former detainees….

Baher Azmy, a defense attorney both for Abu Zubaydah, the terror suspect who was repeatedly waterboarded by the CIA, and for Murat Kurnaz, a German-born Turkish citizen released without charges from Gitmo in 2006, said Wilkerson's declaration is "remarkable because it makes a bridge between the hapless detention policy in the war on terror and the Iraq war."

"There had been suggestions that there were links on the margins," he added, "but this suggests there's a link at the core."

Azmy said he hoped the latest news would spur a more formal investigation into Bush-era detainee policies, something the Obama White House has resisted. "There are a lot more questions that have to be asked than have been answered," said Azmy, who directs the Civil Rights and Constitutional Litigation Clinic at Seton Hall University in New Jersey. "The corruption in the detention operations runs very deep."

document Read the full AOL News article, Ex-Aide: Bush Knew Gitmo Prisoners Were Innocent, here 

Professor Paula Franzese

Professor Paula Franzese in Bloomberg News regarding former Governor Jon Corzine’s office allegedly taking unfair advantage in securing concert tickets.

April 07, 2010

As the result of litigation pursued against ticket agencies in New Jersey, evidence of special treatment for some politicians in procuring hard to get concert tickets has emerged. Bloomberg reports that

Corzine's office reserved 57 tickets for U2, Springsteen and the Jonas Brothers at Giants Stadium and IZOD Center from July to October 2009 through the New Jersey Sports & Exposition Authority, agency records show. The documents, evidence in a state lawsuit against ticket Web sites, indicate more than 350 seats for 15 concerts were set aside for elected officials.

Professor Franzese, chair of the New Jersey State Ethics Commission, noted for Bloomberg news that

“Tapping the agency for tickets may violate ethics rules that bar officials from taking "unwarranted privileges," and that "The means by which the tickets are secured has everything to do with undue access and using official position to secure an unfair advantage. I would like to see an investigation."

Professor Franzese also noted that "The public can't help but feel violated when the perception is some are entitled to special treatment, but not others," and “said she wasn't aware of the ticket practices and that the commission will review the sports authority's policies.” 

document Read the full Bloomberg article, Corzine, New Jersey Officials Cut Line for U2 Tickets, here

Professor Kip Cornwell

Professor Kip Cornwell in the Star Ledger on the Prosecution of a 32-Year-Old Multiple Murder Case

March 24, 2010

Professor Kip Cornwell was featured in a Star Ledger article regarding the prosecution of two men for the murder of five Newark teens in 1978. Recent revelations from one of the men now charged in the murders (and presumably a willingness to testify) actually prompted the prosecutor’s office to level charges against the two. The prosecutor, however, has declined to make public the identity of its key witness.

The prosecutor faces the arduous task of proving murder in “a 32-year-old multiple murder case with no bodies and a crime scene that no longer exists.” The prosecutor alleges that the five teens were brought to and restrained in a Newark building’s basement; the building was then set on fire.

Professor Cornwell noted that although the circumstances of the case can make prosecution difficult,

"’It’s powerful evidence if one of the people who perpetuated the crime has admitted he did it. He’s exposing himself to a lengthy jail sentence,’ said John Kip Cornwell, a professor at Seton Hall Law School. No remains were found and any evidence from the arson investigation was destroyed in a flood a few years ago. But compelling testimony from one of the co-defendants could carry a jury if, ‘he can tell a story that puts the pieces together and makes what they did seem plausible,’ Cornwell said.”

document Read the full Star-Ledger article, Without Bodies of Five Missing Newark Teens, Prosecutors Face Challenges, here

Professor Mark Alexander

Professor Mark Alexander, former Policy Director for Barack Obama’s Presidential Campaign, in the Huffington Post on the Health Care Reform Bill

March 23, 2010

Professor Mark Alexander, who served as election campaign Policy Director to Sen. Ted Kennedy, Sen. Bill Bradley, and Barack Obama in his campaign to be elected President, recounts for the Huffington Post how Health Care reform “has been a long time coming.”

Professor Alexander writes:

So when I became Policy Director for Barack Obama, at the beginning of his presidential campaign, the problem was still there. The same problem that Ted Kennedy had been fighting since he went to Washington in the early 1960s. The same problem that Kennedy and I talked about in his office in 1988. The same problem that Bill Bradley and I pressed in the 2000 campaign. The only thing that had changed was the numbers -- millions more every year were uninsured and under-insured.

So we set out to draw up a good plan for health care reform. But beyond the details, the top priority was to push for a new politics where we could actually get something done.

 document Read the full Huffington Post article, Health Care -- It's About time, here

Professor Stephen Lubben

Professor Stephen Lubben Featured in the Wall Street Journal and Interviewed by the American Bankruptcy Institute

March 13, 2010

Professor Stephen Lubben was featured in a Wall St. Journal article regarding the demise of Lehman Bros. and its use of a short term lending through what is known as “the repo market.”.

The Wall Street Journal reports that

“The report by Lehman's court-appointed bankruptcy examiner, which runs thousands of pages, recounts efforts by the bank to use sleight-of-hand accounting transactions to spiff up its financial picture and sometimes use low-quality collateral to get loans,” and that “the examiner's report exposes the market's lack of information and the confusing, sometimes contradictory agreements between Lehman and its lenders that help explain why the market seized up in the financial crisis.”

Professor Lubben noted, “The basic problem is that the investment banks have become highly dependent on the repo markets for their funding ... but they were using a whole bunch of nontraditional securities for those repo agreements. The market is extremely opaque and had become very dependent on the value of mortgage-backed securities. As we got into the second half of 2008, it became very unclear what the value was on a lot of those things,"

For the ABI, “the largest multi-disciplinary, non-partisan organization dedicated to research and education on matters related to insolvency,” Professor Lubben discusses the notion of “too big to fail” and the adequacy of Chapter 11 to deal with the failure of systemically significant financial institutions. The conversation is particularly important given the recent insolvency of financial firms, Congress’ proposal to enact legislation regarding the insolvency of firms “too big to fail,” and Professor Lubben’s role as one of only two Bankruptcy Professors to testify before Congress  regarding the oversight of the Troubled Asset Relief Program (TARP).

Professor Lubben favors the continued use of Chapter 11, but with adjustments which would account for the use of derivatives by, among other initiatives, amendment of the Bankruptcy Code in a manner which would rid it of its “safe harbor” for derivatives.

document Read the Wall Street Journal article, Repos Played a Key Role in Lehman's Demise, here

icon_listenListen to the full ABI interview, Can Chapter 11 Work For Large Firms?, here


Professor Jonathan Hafetz Interviewed on Salon Radio Regarding The Guantanamo Lawyers: Inside a Prison Outside the Law, co-edited with Professor Mark Denbeaux

March 12, 2010

Professor Jonathan Hafetz was interviewed by Salon Radio regarding the book he co-edited with Professor Mark Denbeaux, The Guantanamo Lawyers: Inside a Prison Outside the Law, and the personal dynamics of the war on terror for attorneys involved in the defense of Guantanamo detainees.

In the interview, Professor Hafetz, who is a Faculty Fellow of Seton Hall Law’s Center and a Staff Attorney in the ACLU's National Security Project, stated

…for lawyers it’s a very difficult experience emotionally to have to represent individuals who have been wrongly held or held without due process for so many years, who have been abused, who’ve been separated from their families. The lawyers for so long served as the only real human link with the detainees. At the same time, I think it’s a very valuable experience, a rewarding experience for so many of the lawyers to be able to actually know you’re fighting that you believe in and fighting for the Constitution and for justice. It’s a very long fight, and it’s still ongoing and every time we win a momentous victory –and we’ve won three in the Supreme Court, on the Guantanamo detainee cases – the government has attempted to do everything in its power, by going to Congress, or just simply by obstructionism, to put more obstacles in the way of justice and due process.

documentRead the full World Politics interview transcript, Transcript: Jonathan Hafetz on GITMO lawyers, here

icon_listenListen to the full Salon Radio interview, The lawyers smeared by Liz Cheney, here

Professor Frank Pasquale

Professor Frank Pasquale on Brian Lehrer Live Regarding the Implications of Digital Labor

March 09, 2010

Professor Frank Pasquale appeared on Brian Lehrer’s video show along with Trebor Scholz of The New School University to discuss the implications of digital labor in a globalized workplace. Best known for his award winning NPR radio show, Brian Lehrer noted that “Cyberspace is without labor laws or worker protections.” Digital labor such as data mining and data entry have been increasingly outsourced to workers in third world countries for just pennies an hour. Professor Pasquale suggests that although it is a transnational issue, the Department of Labor within each country should start “looking into” the matter, and that perhaps we should begin to think about a minimum wage for these workers and a globalized effort to effectuate minimum labor standards.

video Watch to the full Brian Lehrer interview, The Return of Occupy Wall Street, here

Professor Paula Franzese

Professor Paula Franzese on Chicago Public Radio Regarding Chicago’s Bad Developer Task Force

March 04, 2010

Professor Paula Franzese was recently featured on Chicago Public Radio’s “Eight Forty-Eight” regarding the city of Chicago’s efforts to hold construction developers responsible for “shoddy work.” Chicago has opened a Bad Developer Task Force within its law department to use legal means, and the leverage hefty fines can offer, to force developers to remedy their substandard construction.

The task force lead attorney, Greg Janes, along with three other attorneys and inspectors from the building department, investigates Chicago’s construction problem. The task force has, at present, over 90 lawsuits filed against developers. Many cases, however, do not require suit, merely conversations which apprise those in question that they can avoid suit by making the repairs. For many other cases, however, suit is fruitless, as the developers simply lack the resources to either pay fines or make repairs.

Professor Franzese explained that “Chicago is certainly taking the lead in the context of trying to cure or fix a very severe malaise that is afflicting so many regions of the United States,” noting for Eight Forty-Eight that “lots of cities are struggling with unfinished or poorly built developments,” and that she’s “been fascinated to watch Chicago’s effort, but says it may be a dead-end if developers are broke.”

Mirroring Chicago’s actual experience, replete with contractors fleeing the state in the face of fines and court mandates to remedy, Professor Franzese stated of the Task Force efforts: “It may not yield the results the city hopes simply because the developers are unable to comply.”

Professor John Kip Cornwell

Professor John Kip Cornwell in the Star Ledger on NJ’s Bias Crime Statute and in a Separate Article Regarding a Fourth Amendment Search and Seizure Issue

March 02, 2010

Professor John Kip Cornwell appeared in two articles in the Star Ledger. The first article regards New Jersey’s bias crime statute as applied in a murder case. In response to criticisms that “standard penalties are severe enough and sentences should be the same whether a victim was selected randomly or out of prejudice,” Professor Cornwell noted:

Yet judges also impose tougher sentences due to aggravating factors like the age or vulnerability of a victim, legal experts say. Making bias intimidation a separate offense has a similar intent, said John Kip Cornwell, a professor at Seton Hall Law School.

“With parole, the single penalty might not end up matching the severity of the crime," he said. "It’s a statement that that kind of animus is not going to be tolerated by the state -- it adds an extra measure of evil to the criminal act."

In the second article, “A Sex Case May Hinge on Unlisted Cell Phone,” Professor Cornwell was queried regarding a Fourth Amendment expectation of privacy in reference to the unlisted cell phone number of a middle school teacher accused of molesting a student. The teacher’s phone number was given to the police by the school’s principal—without a warrant or subpoena— and then used by the alleged victim to contact the teacher while police recorded the call. The attorney for the defense is seeking to have the recordings excluded as evidence from the trial on the grounds that such actions by the police constitute an unreasonable search and seizure under the Fourth Amendment, and that the teacher had a reasonable expectation of privacy in his unlisted phone number—even though he had given this unlisted cell phone number to school officials for a staff-contact list.

Professor Cornwell remarked: "I think he has a tough case. If he was aware police had access to his number (in an emergency file), then his claim has no merit. If he was unaware the school had provided the number to police -- even then I don't think he has a Fourth Amendment claim. If the school provided the number to police and it was reasonable for them to do so, then I don't see how their providing the number violated the Fourth Amendment."

document Read the full Star Ledger article, Men Charged in Plainfield Beating Death of Hispanic Immigrant Are Also Accused of Hate Crime, here.

document Read the full Star Ledger article, A Sex Case May Hinge On Unlisted Cell Phone, here

Professor John Wefing

Professor John Wefing’s The Life & Times of Richard J. Hughes: The Politics of Civility, named Book of the Week by Politifax

February 19, 2010

Politifax, “the highly influential, mandatory read for the politicos and reporters in this state,” has named Professor Wefing’s highly acclaimed biography of former New Jersey Governor and Supreme Court Chief Justice, Richard J. Hughes as it’s Book of the Week.

Politfax writes:

Anybody who toils in— or is more than mildly interested in—state politics should read John Wefing’s The Life & Times of Richard J. Hughes: The Politics of Civility. Like everybody else who has read the book – or who knew the late Governor and Chief Justice – we love the stories (about his wife Betty as much as about Hughes himself). But what fascinated us was Hughes’s ability to get along with just about everybody. We noted that, in his eight years as Governor, he faced every possible permutation of legislative majority—Republican in both houses, Democratic in both houses, Republican in the Senate and Democratic in the Assembly, Republican in the Assembly and Democratic in the Senate— and managed to get things done with every configuration. That’s a far cry from our world. All in all, Wefing’s book belongs on every shelf of New Jersey politics and history.”

Read more reviews and articles

Read the Star Ledger Article, "Richard Hughes Biography Measures Mark Left Behind by the Statesman"

Read former New Jersey Supreme Court Justice Stewart Pollock’s review, “'The Life and Times of Richard J. Hughes' a compelling portrait” Read more about Professor Wefing's new book, "The Life and Times of Richard J. Hughes: The Politics of Civility" Read excerpts from “The Life and Times of Richard J. Hughes: The Politics of Civility," published in the New Jersey Law Journal

Professor Mark Denbeaux

Professor Mark Denbeaux and Joshua Denbeaux ’91 in The Atlantic Magazine, “Terror Law Truths: The Denbeauxs Deserve a Medal.”

February 17, 2010

Professor Mark Denbeaux and his son, Josh Denbeaux ’91, were lauded by The Atlantic Magazine for having

“consistently made historic contributions to our understanding of the Bush administration's approach to terror law in the wake of 9/11. Their dogged pursuit of hidden truths has illuminated for us vital, objective facts about how the legal war on terror detainees has really been waged.”

Professor Denbeaux is the Director of Seton Hall Law’s Center for Policy & Research, his son, alumnus Joshua Denbeaux, is a Center Senior Fellow. Together, along with Seton Hall Law students, they have published the world renowned GTMO Reports. The reports have been introduced into the Congressional record by the Senate Armed Services Committee, the Senate Judiciary Committee, the House Armed Services Committee, and as part of a Resolution by the European Parliament, and have been cited by every major media source throughout the world.

The Atlantic:

“In the world of law and academia, Mark and Josh Denbeaux have been roundly cited for their work. It's time the American people and their Congressional representatives tuned in, too. These are earnest, honest people whom history will favor for their brave work in untangling the many government deceptions that have been thrown at the public since the Twin Towers fell.”

document Read the full The Atlantic article, Terror Law Truths: The Denbeauxs Deserve a Medal, here

Adam Deutsch and Kelli Stout

GTMO Fellows Adam Deutsch ’10 and Kelli Stout ’11 Featured on American Public Media’s Nationally Syndicated Radio Show, “The Story”

February 16, 2010

Center for Policy & Research Fellows Adam Deutsch and Kelli Stout were featured on American Public Media’s nationally syndicated radio show, “The Story.” Broadcast on NPR stations across America, the students appeared on the show, along with Center Director Professor Mark Denbeaux, for an in-depth interview regarding their work at the Center and the GTMO Report, “Death in Camp Delta,” which found dramatic flaws in the government’s investigation of the three simultaneous deaths of detainees in Guantánamo Bay, Cuba, and raised serious questions about the characterization of the deaths as suicides.

document icon_listen Read the full American Public Media article and Listen to the interview, Three Deaths At Guantanamo, here

Seton Hall Law

New GTMO Report, “DoD Contradicts DoD” in Harper’s Magazine & London’s Sunday Times

February 09, 2010

A new report by Seton Hall Law’s Center for Policy & Research, “DoD Contradicts DoD,” was featured in articles in Harper’s Magazine and The Sunday Times of London as well as other media sources throughout the world. The Harper’s piece focuses on the latest report, whereas The Sunday Times piece presents an overall picture of the matter.

The newest Center report, “DoD Contradicts DoD,” analyzes the Department of Defense’s most recent attempts to defend its own investigation into the detainee deaths. The Center has found the DoD’s defense contradictory to, and inconsistent with, DoD’s prior statements in its Naval Criminal Investigative Services (NCIS) report.

The Department of Defense has responded to the Seton Hall University School of Law, Center for Policy & Research report, Death in Camp Delta, and Harper’s Magazine’s “The Guantánamo ‘Suicides.’” In its original report, the Center for Policy & Research found dramatic flaws in the government’s investigation of the three simultaneous deaths of detainees in Guantánamo Bay, Cuba, and raised serious questions about the characterization of the deaths as suicides.

The Harper’s report, “The Guantánamo ‘Suicides.’” is based on the Center’s report and the revelations of four Guantánamo tower guards on duty the night of the deaths. According to the St. Louis Post-Dispatch, the revelations show “that the victims may have been transported to another location prior to their ‘discovery,’ and that the events leading to their deaths may have occurred at a ‘black site’— a secret facility used to conduct ‘enhanced’ interrogation.”

This most recent Harper’s article directly addresses the Department of Defense response as well as the newest Center report.

document Read the full Harper’s Magazine article, DOD Contradicts DOD: Seton Hall responds, here

document Read the full The Sunday Times of London article, The three dead Guantanamo men crying for justice, here

document Read the Report and Seton Hall Law Press Release concerning DoD Contradicts DoD, here


Professor Stephen Lubben

Professor Stephen Lubben in the New York Times on Hedge Fund Secrecy in Chapter 11 Reorganizations

February 09, 2010

Professor Stephen Lubben appeared in the New York Times, “DealBook,” regarding a current disagreement among bankruptcy judges in Delaware with respect to the appropriate level of disclosure of economic interests of creditor groups which seek active involvement in Chapter 11 reorganization. The Times notes:

Proponents of added disclosure want more information about all positions of a group, particularly when financial instruments such as credit default swaps muddy the issue of the group’s economic interests. This might reveal, for example, that an ad hoc committee fighting against a reorganization plan could actually benefit if the company liquidates.

Professor Lubben discussed the recent decision which ordered broad disclosure from a group of holders of Washington Mutual bonds, and wherein Judge Walrath noted in particular “the role of complex financial instruments.”

Professor Lubben explained that Judge Walrath “tried to address larger issues,” and noted that

“Over the last decade there has been such a growth of financial products and other investment strategies that reduce transparency in the bankruptcy process.”

A regularly scheduled federal rule-making panel was scheduled to hear arguments both pro and con in the matter before issuing a final recommendation to be considered by the Supreme Court and then reviewed by Congress.

document Read the full New York Times DealBook article, Hedge Funds Fight Judges on Disclosure, here

Dean Kathleen Boozang

Dean Kathleen Boozang in The Star-Ledger on the resignation of Harold Reveche, President of Stevens Institute of Technology, and the unusual role played by NJ’s Attorney General

February 05, 2010

In an unusual move for an Attorney General, Anne Milgram filed a 16-count lawsuit against Stevens Institute of Technology for alleged financial mismanagement and excessive compensation. Specifically, she called attention to the activities of Stevens’ president, Harold Reveche, who accepted compensation of more than $1 million, and whom she accused of hiding the school’s unstable financial situation from the Board of Trustees. Stevens then filed a counter-suit against Milgram, accusing her of overstepping her authority. The case settled with Reveche’s resignation and the case against the Attorney General dismissed. Dean Kathleen Boozang commented in The Star Ledger that Milgram’s were appropriate for her office: “Attorneys general getting involved with the management of nonprofits is a very rare circumstance. She’s not the first, but she’s one of a few.”

Professor Mark Alexander

Professor Mark Alexander on On Bribery and Campaign Contributions in the trial of former Jersey City Deputy Mayor Leona Beldini on WCBS Radio

February 05, 2010

WCBS Radio interviewed Professor Mark Alexander regarding the line between bribery and a campaign contribution as the first trial of 40 politicians netted in a federal sting awaits trial. Leona Beldini is accused of taking $20,000 posed as campaign contributions in return for helping a federal informant posing as a developer. 

Professor Alexander, who teaches Constitutional Law and the intersection of Law and Politics, noted that the line between bribery and a campaign contribution is not always clear. “The short answer in terms of the difference between bribery and political contributions is you often see there’s a quid pro quo. Somebody says, ‘I want this in return for my money,’” he said.

The problem, according to Professor Alexander, is that people routinely contribute to the candidates whose positions they support. In order to prove a bribe, the prosecution has to demonstrate evidence of a quid pro quo exchange. “… money in America buys access to elected officials,” he said.

Professor Alexander was Senior Advisor and Policy Director to President Barack Obama during his 2008 presidential campaign and developed Obama’s signature policies, built a network of policy experts and provided overall strategic guidance. He has worked as an advisor for the campaign to elect Newark Mayor Cory Booker and 2000 Presidential candidate Bill Bradley. 

icon_listen Listen to the full interview here

Professor Mark Denbeaux, Center for Research and Policy

Amnesty International, Congressional and Religious Leaders Call on U.S. Attorney General to Investigate Detainee Deaths at GTMO

January 31, 2010

Amnesty International and Rep. Anna G. Eshoo (D- Calif.), a senior member of the House Permanent Select Committee on Intelligence, have joined the swelling ranks of journalists, political activists and religious leaders calling for an independent investigation into the deaths of three detainees at the Guantánamo Bay Detention Center.

Based on the report “Death in Camp Delta,” by Seton Hall Law’s Center for Policy & Research and the subsequent revelations of Guantánamo guards detailed in a Harper’s Magazine exposé, “The Guantánamo ‘Suicides,’” Representative Eshoo expressed “grave concerns” and formally called upon Attorney General Eric Holder to “thoroughly investigate” the deaths and even the subsequent military investigation of the deaths. Likewise, Amnesty International has “formally urged” Attorney General Holder to:

  1. Release unredacted copies of the NCIS and SOUTHCOM investigations into the incident;
  2. Publish the Department of Justice’s investigation of Sgt. Hickman’s allegations;
  3. Reveal the purpose of the facility Hickman labeled ‘Camp No’; and
  4. Publish any materials relating to the abuse of a fourth detainee, Shaker Aamer, reported to have taken place in Camp Echo on the same day.

In calling for a thorough and independent investigation, Representative Eshoo and Amnesty International join the Editorial Board of the St. Louis Post-Dispatch, MSNBC’s Post Dispatch, the National Religious Campaign Against Torture, and a whole host of political activists and journalists to numerous to list.

document Read the full Amnesty International article, Death at Camp Delta, here 

document Read the Seton Hall Law Press Release about Rep. Eshoo's formal request, here

document Read the Huffington Post article, National Religious Campaign Against Torture’s request and protest, here

document Read the Seton Hall Law Press Release about St. Louis Post-Dispatch calling for a Special Prosecutor to Investigate the deaths, here

Professor John Jacobi

Professor John V. Jacobi in The Health Care Blog on “Cost, Choice & Value” in Health Care

January 29, 2010

Professor Jacobi’s “Cost, Choice & Value,” an article originally published on Health Reform Watch, was featured in The Health Care Blog, a preeminent medical industry and issues blog. In the piece, Professor Jacobi looks at cost containment strategies with recent political developments as a backdrop.

document Read the full The Health Care Blog article, Cost, Choice and Value, here

Seton Hall Law

More Seton Hall Alumni Join Governor Christie’s Cabinet and Staff

January 25, 2010

Governor Christopher J. Christie ’87 has appointed Robert Czech ’87 to chair the State of New Jersey Civil Service Commission. Thomas B. Considine ’88 will be New Jersey’s Banking and Insurance Commissioner.

Czech and Considine will join State Treasurer Andrew Eristoff, Economic Development Authority (EDA) Chair Al Koeppe ’75 and Council of Economic Advisors (CEA) Chair Bob Grady on Christie’s staff.

document Read the full North Jersey article, Christie: The First 100 Days, here

Professor Mark Denbeaux

Professor Mark Denbeaux on Keith Olbermann’s Countdown Regarding GTMO Detainee Deaths

January 21, 2010

Professor Mark Denbeax appeared on the MSNBC show, Keith Olbermann’s Countdown to speak about recent revelations from GTMO guards regarding the death of three detainees in Guantanamo Bay, Cuba, and the existence of a “black site” outside the gates of the detention facility. The primary whistleblower, Army Staff Sergeant Joseph Hickman, has said that reading the Center for Policy & Research GTMO Reports, as well as a desire to have the truth known, prompted him to come forward.

video Watch the full MSNBC Today show, Freedom Tower to Become Tallest In New York City, here

Governor Corzine Appoints Superior Court Judges: Seton Hall Law Alumni Serve at the Highest Levels of the Bench and Bar

January 21, 2010

Seton Hall Law is proud to announce that eight Seton Hall Law alumni were among the 17 appointments to the New Jersey Superior Court during the week of January 11.

  1. Daniel D’Alessandro ‘74 Family Part, Hudson County
  2. James DeMarzo ‘89 Family Part, Morris County
  3. Anthony M. Massi '79 Mercer County, Family Division
  4. Hany Mawla ‘98 Family Part, Somerset County
  5. Francis Vernoia ‘79 Criminal Part, Monmouth County
  6. Thomas Walsh ‘01 Family Part, Union County
  7. Cathy Wasserman ‘78 Family Part, Essex County
  8. Mary Whipple ‘81 Family Part, Morris County

Seton Hall Law would like to extend congratulations to these distinguished alumni.

document Read NJ Law Journal article, Roster of Newly Appointed Superior Court Judges -- 2010, here (login required)

Professor Linda Fisher

Professor Linda Fisher in the International Business Times, the Guardian (U.K.),, and Fox Business on the Dismissal of Baltimore’s suit against Wells Fargo for Predatory Lending

January 13, 2010

Professor Linda Fisher appeared in the International Business Times, the Guardian (U.K.),, and Fox Business regarding a U.S. District Court’s dismissal of the City of Baltimore’s lawsuit against Wells Fargo for alleged predatory lending practices. Professor Fisher has helped lead the fight against unfair mortgage and foreclosure practices in New Jersey through her work with Seton Hall Law students in the Center for Social Justice. Commenting on the dismissal of the Baltimore lawsuit, Fisher pointed out that, "It is difficult for cities to show a causal link between one lender's actions and overall economic blight. Cities may need to tailor their lawsuits more narrowly." Professor Fisher has written about reverse redlining and the correlation between race and subprime lending. Her expertise regarding the mortgage crisis and subprime and predatory lending has been featured in the New York Times, the Star Ledger, the Huffington Post and numerous other media sources throughout the world.

document Read the full International Business Times article, Wells Fargo Mortgage Case In Baltimore Dismissed, here

document Read the full The Guardian article, Wells Fargo Mortgage Case in Baltimore Dismissed, here  

Professor Stephen Lubben

Professor Stephen Lubben in the Wall Street Journal on the Prospect of Manhattan Becoming a Destination Venue for Companies Seeking Bankruptcy Protection with 363 Sales

January 11, 2010

Professor Stephen Lubben appeared in an article in the Wall Street Journal on how decisions regarding GM and Chystler’s Chapter 11 bankruptcy cases will affect future bankruptcy litigation. Specifically, he believes the decisions, with regard to Section 363 asset sales, could well result in Manhattan’s bankruptcy court, which is under the jurisdiction of the Second Circuit, becoming a destination venue for similarly situated companies.

The Second Circuit decision in Chrysler’s case allowed the company to “sidestep a contentious fight with creditors and avoid a prolonged stay in court,” according to the Wall Street Journal.

The decision allowed the company to conduct a 363 sale, so named after the Bankruptcy Code section that governs asset sales, to essentially restructure and stay in business.

WSJ reports:

Chrysler's case may have the effect of drawing companies hoping to execute similar sales to the U.S. Bankruptcy Court in Manhattan, which handled both the GM and Chrysler Chapter 11 cases, said Stephen Lubben, a bankruptcy-law professor at Seton Hall University in New Jersey.

The Manhattan bankruptcy court falls under the 2nd Circuit's jurisdiction. "Companies already have some indication of how the 2nd Circuit is likely to decide," Lubben said. The cases also show that the Manhattan bankruptcy court is willing to work quickly to approve of a sale without making the company show it has considered developing a reorganization plan, he said.

Recently, testimony Professor Lubben gave to the Congressional Oversight Panel charged with monitoring the Troubled Asset Relief Program (TARP) was also featured in the Wall Street Journal.

In that article, the Wall Street Journal noted that in Professor Lubben’s Congressional testimony he said the quick, lender-controlled 363 sales that took place in the GM and Chrysler bankruptcy cases are "entirely within the mainstream" of Chapter 11 practice for the last 10 years.

"Congress may well decide, as a matter of policy, that this should end, but until it does there is little to the idea that these cases are ‘unprecedented’ in their structure," he wrote. "The identity of the [debtor-in-possession] lender is novel, but what happened is routine."